exv4w2





Exhibit
4.2


 





CENTURY
ALUMINUM
 COMPANY,

as Issuer




the GUARANTORS party hereto




and




WILMINGTON TRUST

COMPANY,

as Trustee and Noteholder Collateral Agent




 






Indenture




Dated as of December 10, 2009




 






8% Senior Secured Notes

due 2014




 





 









 





CROSS-REFERENCE TABLE










	 	 	 	 
	TIA Sections	 	 	Indenture Sections
	310
	(a)(1)	 	7.10
	 
	(a)(2)	 	7.10
	 
	(a)(3)	 	Not Applicable
	 
	(a)(4)	 	Not Applicable
	 
	(a)(5)	 	7.10
	 
	(b)	 	7.03; 7.08; 7.10
	 
	(c)	 	Not Applicable
	311
	(a)	 	7.03
	 
	(b)	 	7.03
	 
	(c)	 	Not Applicable
	312
	(a)	 	13.02
	 
	(b)	 	13.02
	 
	(c)	 	13.02
	313
	(a)	 	7.06
	 
	(b)	 	7.06
	 
	(c)	 	7.05, 7.06
	 
	(d)	 	7.06
	314
	(a)	 	4.17, 4.18
	 
	(b)	 	4.18, 12.06
	 
	(c)(1)	 	13.04
	 
	(c)(2)	 	13.04
	 
	(c)(3)	 	Not Applicable
	 
	(d)	 	12.05, 12.06
	 
	(e)	 	13.05
	 
	(f)	 	Not Applicable
	315
	(a)	 	7.02
	 
	(b)	 	7.02
	 
	(c)	 	7.01, 7.02
	 
	(d)	 	7.02
	 
	(e)	 	6.12
	316
	(a)	 	2.09
	 
	(a)(1)(A)	 	6.05
	 
	(a)(1)(B)	 	6.04
	 
	(a)(2)	 	Not Applicable
	 
	(b)	 	6.07
	 
	(c)	 	Not Applicable
	317
	(a)(1)	 	6.08
	 
	(a)(2)	 	6.09
	 
	(b)	 	2.03
	318
	(a)	 	13.01






 









 






TABLE OF CONTENTS





	 	 	 
	 	 	Page
	ARTICLE 1 

	Definitions and Incorporation By Reference 

	 
	 	 
	Section 1.01. Definitions
	 	1
	Section 1.02. Rules of Construction
	 	28
	 
	 	 
	ARTICLE 2 

	The Notes 

	 
	 	 
	Section 2.01. Form, Dating and Denominations; Legends
	 	29
	Section 2.02. Execution and Authentication
	 	29
	Section 2.03. Registrar, Paying Agent and Authenticating
Agent; Paying Agent to Hold Money in Trust
	 	30
	Section 2.04. Replacement Notes
	 	31
	Section 2.05. Outstanding Notes
	 	31
	Section 2.06. Temporary Notes
	 	32
	Section 2.07. Cancellation
	 	32
	Section 2.08. CUSIP and CINS Numbers
	 	32
	Section 2.09. Registration, Transfer and Exchange
	 	32
	Section 2.10. Restrictions on Transfer and Exchange
	 	35
	 
	 	 
	ARTICLE 3 

	Redemption, Offer To Purchase 

	 
	 	 
	Section 3.01. Optional Redemption
	 	35
	Section 3.02. Redemption with Proceeds of Public Equity Offering
	 	35
	Section 3.03. Method and Effect of Redemption
	 	36
	Section 3.04. Offer to Purchase
	 	37
	 
	 	 
	ARTICLE 4 

	Covenants 

	 
	 	 
	Section 4.01. Payment of Notes
	 	39
	Section 4.02. Maintenance of Office or Agency
	 	40
	Section 4.03. Existence
	 	40
	Section 4.04. Payment of Taxes and Other Claims
	 	41
	Section 4.05. Maintenance of Properties and Insurance
	 	41
	Section 4.06. Limitation on Debt and Disqualified or Preferred Stock
	 	41
	Section 4.07. Limitation on Restricted Payments
	 	45
	Section 4.08. Limitation on Liens
	 	49
	Section 4.09. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries
	 	49






 









 






	 	 	 
	 	 	Page
	Section 4.10. Limitation on Sale or Issuance of Equity Interests of Restricted
Subsidiaries
	 	51
	Section 4.11. Guaranties by Restricted Subsidiaries
	 	52
	Section 4.12. Repurchase of Notes upon a Change of Control
	 	52
	Section 4.13. Limitation on Asset Sales
	 	52
	Section 4.14. Limitation on Transactions with Shareholders and Affiliates
	 	54
	Section 4.15. Line of Business
	 	56
	Section 4.16. Designation of Restricted and Unrestricted Subsidiaries
	 	56
	Section 4.17. Financial Reports
	 	57
	Section 4.18. Reports to Trustee
	 	58
	Section 4.19. Collateral Requirements;Further Assurances; Costs
	 	59
	 
	 	 
	ARTICLE 5 

	Consolidation, Merger or Sale of Assets 

	 
	 	 
	Section 5.01. Consolidation, Merger or Sale of Assets by the Company; No
Lease of All or Substantially All Assets
	 	60
	Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor
	 	61
	 
	 	 
	ARTICLE 6 

	Default and Remedies 

	 
	 	 
	Section 6.01. Events of Default
	 	62
	Section 6.02. Acceleration
	 	64
	Section 6.03. Other Remedies
	 	65
	Section 6.04. Waiver of Past Defaults
	 	65
	Section 6.05. Control by Majority
	 	65
	Section 6.06. Limitation on Suits
	 	66
	Section 6.07. Rights of Holders to Receive Payment
	 	66
	Section 6.08. Collection Suit by Trustee
	 	66
	Section 6.09. Trustee May File Proofs of Claim
	 	66
	Section 6.10. Priorities
	 	67
	Section 6.11. Restoration of Rights and Remedies
	 	67
	Section 6.12. Undertaking for Costs
	 	68
	Section 6.13. Rights and Remedies Cumulative
	 	68
	Section 6.14. Delay or Omission Not Waiver
	 	68
	Section 6.15. Waiver of Stay, Extension or Usury Laws
	 	68
	 
	 	 
	ARTICLE 7 

	The Trustee 

	 
	 	 
	Section 7.01. General
	 	69
	Section 7.02. Certain Rights of Trustee
	 	69
	Section 7.03. Individual Rights of Trustee
	 	71
	Section 7.04. Trustee’s Disclaimer
	 	71
	Section 7.05. Notice of Default
	 	71
	Section 7.06. Reports by Trustee to Holders
	 	72






ii









 






	 	 	 
	 	 	Page
	Section 7.07. Compensation and Indemnity
	 	72
	Section 7.08. Replacement of Trustee
	 	72
	Section 7.09. Successor Trustee by Merger
	 	74
	Section 7.10. Eligibility
	 	74
	Section 7.11. Money Held in Trust
	 	74
	 
	 	 
	ARTICLE 8 

	Defeasance and Discharge 

	 
	 	 
	Section 8.01. Discharge of Company’s Obligations
	 	74
	Section 8.02. Legal Defeasance
	 	75
	Section 8.03. Covenant Defeasance
	 	76
	Section 8.04. Application of Trust Money
	 	77
	Section 8.05. Repayment to Company
	 	77
	Section 8.06. Reinstatement
	 	77
	 
	 	 
	ARTICLE 9 

	Amendments, Supplements and Waivers 

	 
	 	 
	Section 9.01. Amendments without Consent of Holders
	 	78
	Section 9.02. Amendments with Consent of Holders
	 	78
	Section 9.03. Effect of Consent
	 	80
	Section 9.04. Trustee’s Rights and Obligations
	 	80
	Section 9.05. Conformity with Trust Indenture Act
	 	80
	Section 9.06. Payments for Consents
	 	81
	 
	 	 
	ARTICLE 10 

	Guaranties

	 
	 	 
	Section 10.01. The Guaranties
	 	81
	Section 10.02. Guaranty Unconditional
	 	81
	Section 10.03. Discharge; Reinstatement
	 	82
	Section 10.04. Waiver by the Guarantors
	 	82
	Section 10.05. Subrogation and Contribution
	 	82
	Section 10.06. Stay of Acceleration
	 	82
	Section 10.07. Limitation on Amount of Guaranty
	 	82
	Section 10.08. Execution and Delivery of Guaranty
	 	83
	Section 10.09. Release of Guaranty
	 	83
	 
	 	 
	ARTICLE 11 

	Ranking of Liens 

	 
	 	 
	Section 11.01. Agreement for the Benefit of Holders of First-Priority Liens
	 	83
	Section 11.02. Notes, Guarantees And Other Second-Priority Lien Obligations Not
Subordinated
	 	84
	Section 11.03. Relative Rights
	 	84






iii









 






	 	 	 
	 	 	Page
	ARTICLE 12 

	Collateral And Security 

	 
	 	 
	Section 12.01. Collateral Agreements
	 	86
	Section 12.02. Noteholder Collateral Agent
	 	86
	Section 12.03. Collateral Proceeds Account
	 	87
	Section 12.04. Authorization Of Actions To Be Taken
	 	88
	Section 12.05. Release Of Second Priority Liens
	 	89
	Section 12.06. Filing, Recording And Opinions
	 	90
	 
	 	 
	ARTICLE 13 

	Miscellaneous 

	 
	 	 
	Section 13.01. Trust Indenture Act Of 1939
	 	91
	Section 13.02. Noteholder Communications; Noteholder Actions
	 	91
	Section 13.03. Notices
	 	91
	Section 13.04. Certificate And Opinion As To Conditions Precedent
	 	92
	Section 13.05. Statements Required In Certificate Or Opinion
	 	93
	Section 13.06. Payment Date Other Than A Business Day
	 	93
	Section 13.07. Governing Law
	 	93
	Section 13.08. No Adverse Interpretation Of Other Agreements
	 	93
	Section 13.09. Successors
	 	93
	Section 13.10. Duplicate Originals
	 	93
	Section 13.11. Separability
	 	94
	Section 13.12. Table Of Contents And Headings
	 	94
	Section 13.13. No Liability Of Directors, Officers, Employees, Incorporators And Stockholders
	 	94






EXHIBITS




	 	 	 
	EXHIBIT A

	 	Form of Note
	EXHIBIT B

	 	Form of Supplemental Indenture
	EXHIBIT C

	 	Form of Intercreditor Agreement
	EXHIBIT D

	 	DTC Legend







iv











 





     INDENTURE, dated as of December 10, 2009, among Century Aluminum Company, a Delaware
corporation, as the Company, the Guarantors party hereto and Wilmington Trust Company, a Delaware
banking corporation, as Trustee and Noteholder Collateral Agent.



RECITALS




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of $245,475,800 aggregate principal amount of the Company’s 8% Senior Secured Notes
due 2014, and if and when issued, any Additional Notes (the “Notes”). All things necessary to make
this Indenture a valid agreement of the Company, in accordance with its terms, have been done, and
the Company has done all things necessary to make the Notes (in the case of the Additional Notes,
when duly authorized), when executed by the Company and authenticated and delivered by the Trustee
under this Indenture and duly issued by the Company, the valid obligations of the Company as
hereinafter provided.



     In addition, the Guarantors party hereto have duly authorized the execution and delivery of
this Indenture as guarantors of the Notes. All things necessary to make this Indenture a valid
agreement of each Guarantor, in accordance with its terms, have been done, and each Guarantor has
done all things necessary to make the Note Guaranties, when the Notes are executed by the Company
and authenticated and delivered by the Trustee under this Indenture and duly issued by the Company,
the valid obligations of such Guarantor as hereinafter provided.



     This Indenture is subject to, and will be governed by, the provisions of the Trust Indenture
Act that are required to be a part of and govern indentures qualified under the Trust Indenture
Act.



THIS INDENTURE FURTHER WITNESSETH




     For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as
follows:



ARTICLE 1

Definitions and Incorporation By Reference




     Section 1.01. Definitions.



     “7.5% Notes” means the Company’s 7.5% Senior Notes due 2014.



     “7.5% Notes Issue Date” means August 26, 2004.



     “Acquired Debt” means (i) Debt of a Person existing at the time the Person merges with or into
or becomes a Restricted Subsidiary or (ii) Debt



 









 




incurred as an assumed liability in connection with the acquisition of related assets, in each
case not Incurred in connection with, or in contemplation of, the Person merging with or into or
becoming a Restricted Subsidiary or the assets being acquired.




     “Additional Notes” means any Notes issued under this Indenture in exchange for Existing Notes
and in addition to the Original Notes having the same terms in all respects as the Original Notes
or the same terms in all respects except with respect to interest paid or payable on or prior to
the first Interest Payment Date after the issuance of such Additional Notes.



     “Affiliate” means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by, or under direct or indirect common control with, such Person. For
purposes of this definition, “control” (including, with correlative meanings, the terms
“controlling,” “controlled by” and “under common control with”) with respect to any Person, means
the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.



     “Agent” means any Registrar, Paying Agent or Authenticating Agent.



     “Agent Member” means a member of, or a participant in, the Depositary.



     “Asset Sale” means any sale, lease (other than operating leases entered into in the ordinary
course of business), transfer or other disposition of any assets by the Company or any Restricted
Subsidiary, including by means of a merger, consolidation or similar transaction or Sale and
Leaseback Transaction and including any sale or issuance of Equity Interests of any Restricted
Subsidiary (each of the above referred to as a “disposition”), provided that the following are not
included in the definition of “Asset Sale”:




     (1) a disposition to the Company or a Wholly Owned Restricted Subsidiary, including
the sale or issuance by the Company or any Restricted Subsidiary of any Equity Interests
of any Restricted Subsidiary to the Company or any Wholly Owned Restricted Subsidiary (in
the case of any Collateral, provided that such Collateral shall continue to comprise
Collateral subject to the Collateral Agreements on terms substantially no less favorable
to the Holders of the Notes than those in existence immediately prior to such transfer);




     (2) (A) the disposition by the Company or any Restricted Subsidiary in the ordinary
course of business of (i)cash and cash management investments, (ii)inventory or other
assets acquired or produced and held for sale or resale in the ordinary course of
business, or (iii) rights granted to others pursuant to leases, subleases or licenses and



2









 






(B) the disposition by the Company of Century Aluminum of Kentucky General
Partnership of power in the ordinary course of business;




     (3) the sale or discount of accounts receivable (including receivables due from
Affiliates) arising in the ordinary course of business in connection with the compromise
or collection thereof;




     (4) a transaction that is governed by Section 5.01;




     (5) a Restricted Payment permitted under Section 4.07 or a Permitted Investment;




     (6) any disposition in a transaction or series of related transactions of assets with
a fair market value of less than $5.0 million;




     (7) any disposition of Equity Interests of an Unrestricted Subsidiary;




     (8) the granting of a Lien, other than in connection with a Sale and Leaseback
Transaction, if the Lien is granted in compliance with Section 4.08;




     (9) any disposition of (a) any part or all of the Equity Interests of any Legacy
Domestic Subsidiary, or any part or all of the assets of any Legacy Domestic Subsidiary,
or (b) any Equity Interests of any Joint Venture that is not a Restricted Subsidiary;
provided that, in each of clauses (a) and (b), the disposition is for fair market value,
as determined in good faith by the Board of Directors, and any Net Cash Proceeds from such
disposition (treated as if it were an Asset Sale) shall be applied as set forth under
paragraphs (c) and (d) of Section 4.13; and




     (10) the settlement or termination of any Hedging Agreement.



     “Attributable Debt” means, in respect of a Sale and Leaseback Transaction, the present value,
discounted at the interest rate implicit in the Sale and Leaseback Transaction, of the total
obligations of the lessee for rental payments during the remaining term of the lease in the Sale
and Leaseback Transaction.



     “Authenticating Agent” refers to a Person engaged to authenticate the Notes in the stead of
the Trustee.



     “Average Life” means, with respect to any Debt, the quotient obtained by dividing (i) the sum
of the products, determined for each scheduled principal payment of such Debt occurring after the
date of determination, of (x) the number of years from the date of determination to the date of
such principal payment, and



3









 






(y) the amount of such principal payment by (ii) the sum of all such principal payments.



     “bankruptcy default” has the meaning assigned to such term in Section 6.01.



     “Board of Directors” means the board of directors or comparable governing body of the Company,
or any committee thereof duly authorized to act on its behalf.



     “Board Resolution” means a resolution certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors which, as of the date of any
certification thereof, remains in full force and effect.



     “Business Day” means any day except a Saturday, Sunday or other day on which commercial banks
in New York City or in the city where the Corporate Trust Office of the Trustee is located are
authorized by law to close.



     “Capital Lease” means, with respect to any Person, any lease of any property which, in
conformity with GAAP, is required to be capitalized on the balance sheet of such Person.



     “Capital Stock” means, with respect to any Person, any and all shares of stock of a
corporation, partnership interests or other equivalent interests (however designated, whether
voting or non-voting) in such Person’s equity, entitling the holder to receive a share of the
profits and losses, and a distribution of assets, after liabilities, of such Person.



     “Cash Equivalents” means




     (1) United States dollars, or money in other currencies received in the ordinary
course of business,




     (2) U.S. Government Obligations and obligations of any agency of the U.S. Government
rated AAA by S&P and Aaa by Moody’s at the time of acquisition, in each case with
maturities not exceeding one year from the date of acquisition,




     (3) (i) demand deposits, (ii) time deposits and certificates of deposit with
maturities of one year or less from the date of acquisition, (iii) bankers’ acceptances
with maturities not exceeding one year from the date of acquisition, and (iv) overnight
bank deposits, in each case with any bank or trust company organized or licensed under the
laws of the United States or any state thereof having capital, surplus and undivided
profits in excess of $500 million whose short-term debt is rated “A-2” or higher by S&P or
“P-2” or higher by Moody’s,



4









 






     (4) repurchase obligations with a term of not more than seven days for underlying
securities of the type described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in clause (3) above,




     (5) commercial paper rated at least P-1 by Moody’s or A-1 by S&P at the time of
acquisition and maturing within six months after the date of acquisition,




     (6) money market funds at least 95% of the assets of which consist of investments of
the type described in clauses (1) through (5) above, and




     (7) in the case of a Foreign Restricted Subsidiary, substantially similar investments
made in the ordinary course of business and denominated in the currency of any location
where the Foreign Restricted Subsidiary conducts business.



     “Certificated Note” means a Note in registered individual form without interest coupons.



     “Change of Control” means:




     (1) the merger or consolidation of the Company with or into another Person or the
merger of another Person with or into the Company, or the sale of all or substantially all
the assets of the Company to another Person, (in each case, unless such other Person is a
Permitted Holder) unless holders of a majority of the aggregate voting power of the Voting
Stock of the Company, immediately prior to such transaction, hold securities of the
surviving or transferee Person that represent, immediately after such transaction, at
least a majority of the aggregate voting power of the Voting Stock of the surviving or
transferee Person;




     (2) any “person” or “group” (as such terms are used for purposes of Sections 13(d)
and 14(d) of the Exchange Act), other than Permitted Holders, is or becomes the
“beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act), directly
or indirectly, of more than 40% of the total voting power of the Voting Stock of the
Company (other than through the creation of a holding company for the Company that does
not involve a change in the beneficial ownership of the Company as a result of the
transaction); provided that indirect beneficial ownership of more than 40% of the total
voting power of the Voting Stock of the Company through direct or indirect ownership of
Voting Stock or Capital Stock of Glencore by (a) the then-current or former officers or
employees of Glencore or any of its Subsidiaries (the “Glencore Employees”) and/or (b) by
any Person controlled by the Glencore Employees shall not be deemed to constitute a Change
of Control if the



5









 






composition of the Glencore Employees continues to be comprised in a manner
consistent with the manner in which it is comprised on the Issue Date;




     (3) at any time during any period of two consecutive years after the Issue Date,
individuals who at the beginning of any such period constituted the board of directors of
the Company, together with any new directors whose election by the board of directors or
whose nomination for election by the stockholders of the Company was approved by a
majority of the directors then still in office who were either directors at the beginning
of such period or whose election or nomination for election was previously so approved,
cease for any reason to constitute a majority of the board of directors of the Company
then in office; or




     (4) the adoption of a plan relating to the liquidation or dissolution of the Company.



     “Collateral” means, collectively, the following assets of the Company or any Guarantor,
whether now owned or hereafter arising or acquired, in each case subject to Permitted Liens and
exceptions and encumbrances described in the Collateral Agreements:



     (i) all property, plant and equipment of the Company and the Guarantors (the “PP&E”) other
than (a) any item constituting PP&E that the Company determines to exclude from the Collateral;
provided that the aggregate book value of the items excluded pursuant to this clause (a) at any
time outstanding does not exceed 5% of the aggregate principal amount of all PP&E of the Company
and the Guarantors owned at the time of any such exclusion, (b) motor vehicles, (c) any individual
item of moveable equipment (including office equipment) with a book value, as of the time of
exclusion, of less than $10,000 per item, (d) equipment that is subject to a Lien or lease that
prohibits the creation or perfection of security interests therein, and (e) all assets of Berkeley
Aluminum Inc., the owner of the Company’s interest in the Mt. Holly facility, including its equity
interests in Mt. Holly Aluminum Company, a South Carolina partnership, which assets are subject to
limitations on pledges under the applicable joint venture agreement;



     (ii) all Equity Interests in Subsidiaries directly owned by the Company or any Guarantor;
provided that no more than 65% of Equity Interests in any Foreign Subsidiaries, or any pass-through
entity owner thereof, directly owned by the Company or any Guarantor shall be pledged;



     (iii) intercompany notes owed to the Company or any Guarantor by any Subsidiary of the Company
that is not a Guarantor other than intercompany notes that the Company determines to exclude from
the Collateral; provided that the aggregate principal of the items excluded from this clause (iii)
at any time



6









 




outstanding does not exceed 2% of the aggregate principal amount of all such notes at the time
then outstanding; and




     (iv) proceeds of the foregoing, including without limitation all moneys deposited in the
Collateral Proceeds Account.



     “Collateral Agreements” means, collectively, (i) the Security Agreement, (ii) the Mortgages
and (iii) the other security agreements and pledge agreements among the Company, the Guarantors and
the Noteholder Collateral Agent, from time to time each as amended, restated, supplemented or
otherwise modified from time to time.



     “Collateral Proceeds Account” has the meaning assigned to such term in Section 12.03.



     “Commission” means the Securities and Exchange Commission.



     “Common Stock” means Capital Stock not entitled to any preference on dividends or
distributions, upon liquidation or otherwise.



     “Company” means the party named as such in the first paragraph of this Indenture or any
successor obligor under this Indenture and the Notes pursuant to Section 5.01.



     “Consolidated Net Income” means, for any period, the aggregate net income (or loss) of the
Company and its Restricted Subsidiaries for such period determined on a consolidated basis in
conformity with GAAP, provided that the following (without duplication) will be excluded in
computing Consolidated Net Income:




     (1) the net income (or loss) of any Person that is not a Restricted Subsidiary or is
accounted for by the equity method of accounting, except to the extent of the lesser of




     (x) the dividends or other distributions actually paid in cash to the
Company or any of its Restricted Subsidiaries (subject to clause (3) below) by
such Person during such period, and




     (y) the Company’s pro rata share of such Person’s net income earned during
such period;




     (2) any net income (or loss) of any Person acquired in a pooling of interests
transaction for any period prior to the date of such acquisition;




     (3) the net income (or loss) of any Restricted Subsidiary (other than Grundartangi
and any Nordural Holding Company) to the extent that the declaration or payment of
dividends or similar distributions by such



7









 






Restricted Subsidiary of such net income would not have been permitted for the
relevant period by charter or by any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Restricted Subsidiary
(provided that any loss of such Person for the relevant period shall be included in
calculating Consolidated Net Income to the extent of the amount of cash Investments in
such Person (whether by loan, capital contribution or otherwise) made during the relevant
period by the Company or any of its other Restricted Subsidiaries), provided further that
if the declaration or payment of dividends or similar distributions by any Restricted
Subsidiary would have been permitted at the end of the relevant period, the net income of
such Restricted Subsidiary shall be included for the entire relevant period;




     (4) any net after-tax gains and losses attributable to Asset Sales;




     (5) any net after-tax extraordinary gains and losses determined in accordance with
GAAP and any gains or losses in connection with the early retirement of Debt;




     (6) the cumulative effect of a change in accounting principles;




     (7) any after-tax amortization expense attributable to the Agreement for Electric
Service dated July 15, 1998 with Green River Company related to the Company’s Hawesville
aluminum reduction facility to the extent that such expense represents amortization of the
value attributed thereto in connection with the purchase of the Hawesville facility by the
Company or its Restricted Subsidiaries;




     (8) any after-tax non-cash losses or gains, determined in accordance with GAAP,
relating to Hedging Agreements until such time as such agreements are settled (at which
time such losses or gains shall be included);




     (9) any after-tax non-cash losses or gains related to the write-up or write-down of
inventory to reflect a change in market value of such inventory until such time as such
inventory is sold (at which time such losses or gains shall be included); and




     (10) any amortization of debt issuance costs excluded from Interest Expense.



     “Consolidated Net Worth” means, at any date of determination, the consolidated stockholders’
equity of the Company and its Restricted Subsidiaries, calculated excluding




     (1) any amounts attributable to Disqualified Stock,



8









 






     (2) treasury stock,




     (3) all write-ups (other than write-ups resulting from foreign currency translations
and write-ups of tangible assets of a going concern business made in accordance with GAAP
as a result of the acquisition of such business) subsequent to the 7.5 % Notes Issue Date
in the book value of any asset, and




     (4) the cumulative effect of a change in accounting principles.



     “Convertible Notes” means the Company’s 1.75% Convertible Senior Notes due 2024.



     “Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee is principally administered, which at the date of this Indenture is located at
Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890.



     “Credit Agreement” means the Loan and Security Agreement dated as of September 15, 2005, as
amended on February 22, 2007, among the Company, Berkeley Aluminum, Inc., Century Aluminum of West
Virginia, Inc., Century Kentucky, Inc., NSA General Partnership, Century Aluminum of Kentucky
General Partnership, Bank of America, N.A., as agent, and the lenders and agents party thereto,
together with any related documents (including any security documents and guarantee agreements), as
such agreement may be amended, modified, supplemented, extended, renewed, refinanced or replaced or
substituted from time to time, including any subsequent refinancings, replacements or
substitutions.



     “Debt” means, with respect to any Person, without duplication,




     (1) all indebtedness of such Person for borrowed money;




     (2) all obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;




     (3) all obligations of such Person in respect of letters of credit, bankers’
acceptances or other similar instruments, excluding obligations in respect of trade
letters of credit or bankers’ acceptances issued in respect of trade payables to the
extent not drawn upon or presented, or, if drawn upon or presented, the resulting
obligation of the Person is paid within three Business Days;




     (4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services to the extent recorded as liabilities under GAAP, excluding trade
payables arising in the ordinary course of business;



9









 






     (5) all obligations of such Person as lessee under Capital Leases and all
Attributable Debt;




     (6) all Debt of other Persons Guaranteed by such Person (including by securing such
Debt by a Lien on any asset of such Person, whether or not such Debt is assumed by such
Person) to the extent so Guaranteed, other than a Limited Recourse Guaranty; and




     (7) all obligations of such Person under Hedging Agreements.


The amount of Debt on any date of determination of any Person under clauses (1) through (7) will be
deemed to be:





     (A) with respect to contingent obligations, the maximum liability upon the occurrence
of the contingency giving rise to the obligation;




     (B) with respect to Debt secured by a Lien on an asset of such Person but not
otherwise the obligation, contingent or otherwise, of such Person, the lesser of (x) the
fair market value of such asset on the date the Lien attached and (y) the amount of such
Debt;




     (C) with respect to any Debt issued with original issue discount, the face amount of
such Debt less the remaining unamortized portion of the original issue discount of such
Debt;




     (D) with respect to any Hedging Agreements, the net amount payable, if any, by such
Person, if such Hedging Agreement terminated at that time due to default by such Person;
and




     (E) otherwise, the outstanding principal amount thereof.



     The principal amount of any Debt or other obligation that is denominated in any currency other
than United States dollars (after giving effect to any Hedging Agreement in respect thereof) shall
be the amount thereof, as determined pursuant to the foregoing sentence, converted into United
States dollars at the Spot Rate in effect on the date of determination. For this purpose, “Spot
Rate” means, for any currency, the spot rate at which that currency is offered for sale against
United States dollars as published in The Wall Street Journal on the business day immediately
preceding the date of determination or, if that rate is not available in that publication, as
determined in any publicly available source of similar market data.



     “Default” means any event that is, or after notice or passage of time or both would be, an
Event of Default.



10









 





     “Depositary” means the depositary of each Global Note, which will initially be DTC.



     “Disinterested Directors” has the meaning assigned to such term in Section 4.14.



     “Disqualified Equity Interests” means Equity Interests that by their terms or upon the
happening of any event are




     (1) required to be redeemed or redeemable at the option of the holder prior to the
Stated Maturity of the Notes for consideration other than Qualified Equity Interests, or




     (2) convertible at the option of the holder into Disqualified Equity Interests or
exchangeable for Debt;


provided that Equity Interests will not constitute Disqualified Equity Interests solely because of
provisions giving holders thereof the right to require repurchase or redemption upon an “asset
sale” or “change of control” occurring prior to the Stated Maturity of the Notes if those
provisions





     (A) are no more favorable to the holders than Section 4.12 and Section 4.13, and




     (B) specifically state that repurchase or redemption pursuant thereto will not be
required prior to the Company’s repurchase of the Notes as required by this Indenture.



     “Disqualified Stock” means Capital Stock constituting Disqualified Equity Interests.



     “Domestic Restricted Subsidiary” means any Restricted Subsidiary formed under the laws of, or
50% or more of the assets of which are located in, the United States of America or any
jurisdiction thereof.



     “DTC” means The Depository Trust Company, a New York corporation, and its successors.



     “DTC Legend” means the legend set forth in Exhibit D.



     “EBITDA” means, for any period, the sum of:




     (1) Consolidated Net Income, plus, in each case, without duplication:




     (2) to the extent deducted in calculating Consolidated Net Income, Fixed Charges,
plus



11









 






     (3) to the extent deducted in calculating Consolidated Net Income and as determined
on a consolidated basis for the Company and its Restricted Subsidiaries in conformity with
GAAP:




     (A) income taxes, other than income taxes or income tax adjustments (whether
positive or negative) attributable to Asset Sales, extraordinary gains or losses
or gains or losses in connection with the early retirement of Debt; and




     (B) depreciation, amortization and all other non-cash items reducing
Consolidated Net Income (not including non-cash charges in a period which reflect
cash expenses paid or to be paid in another period), less all non-cash items
increasing Consolidated Net Income (not including non-cash items in a period
which reflects cash income received or to be received in another period);




provided that, with respect to any Restricted Subsidiary, such items (2) and (3) (A) and
(B) will be added only to the extent and in the same proportion that the relevant
Restricted Subsidiary’s net income was included in calculating Consolidated Net Income.



     “Environmental Laws” means any federal, state, local or foreign law (including common law),
treaty, judicial decision, regulation, rule, judgment, order, decree, injunction, permit, or
governmental restriction or requirement, or any written agreement with any governmental authority,
whether now or hereafter in effect, relating to human health and safety, the environment or to
pollutants, contaminants, wastes or chemicals or any toxic, radioactive, ignitable, corrosive,
reactive or otherwise hazardous substances, wastes or materials.



     “Equity Interests” means all Capital Stock and all warrants or options with respect to, or
other rights to purchase, Capital Stock, but excluding Debt convertible into equity (including,
without limitation, the Convertible Notes).



     “Excluded Property” means all assets of the Company and its direct or indirect Subsidiaries
that do not constitute Collateral.



     “Existing Notes” means the 7.5% Notes and the Convertible Notes.



     “Event of Default” has the meaning assigned to such term in Section 6.01.



     “Exchange Act” means the Securities Exchange Act of 1934.



     “filed” means the filing of any information with the Commission, whether such information is
considered filed or furnished by the applicable Commission rules.



12









 





     “First Lien Collateral Agent” means the collateral agent for the First Lien Indebtedness, and
its successors.



     “First Lien Indebtedness” means any Debt, commitments to lend, obligations with respect to
letters of credit and other obligations relating thereto (including interest, fees, expenses,
indemnities and reimbursement obligations) of the Company or any of the Guarantors that is secured
by Liens that are higher in priority than the Second-Priority Liens securing the Notes and Note
Guarantees in a manner permitted by this Indenture.



     “First-Priority Lien Obligations” means the Obligations secured by First-Priority Liens on the
Collateral.



     “First-Priority Liens” means any Liens created by the Company or any of the Guarantors on the
Collateral securing any First Lien Indebtedness.



     “Fixed Charge Coverage Ratio” means, on any date (the “transaction date”), the ratio of




     (x) the aggregate amount of EBITDA for the four fiscal quarters immediately prior to
the transaction date for which financial statements have been provided (or if not timely
provided, required to be provided) pursuant to Section 4.17 (whether through filing of a
Form 10-Q or a Form 10-K for such period or an earnings release filed on Form 8-K) or, in
the case of periods prior to the Issue Date, filed with the Commission (the “reference
period”) to




     (y) the aggregate Fixed Charges during such reference period.




In making the foregoing calculation,




     (1) pro forma effect will be given to any Debt or Disqualified or Preferred Stock
Incurred during or after the reference period to the extent the Debt or Disqualified or
Preferred Stock is outstanding or is to be Incurred on the transaction date as if the Debt
or Disqualified or Preferred Stock had been Incurred on the first day of the reference
period;




     (2) pro forma calculations of interest on Debt bearing a floating interest rate will
be made as if the rate in effect on the transaction date (taking into account any Hedging
Agreement protecting against fluctuations in interest rates applicable to the Debt, if the
Hedging Agreement protecting against fluctuations in interest rates has a remaining term
of at least 12 months or, if less, a remaining term equal to the remaining term of such
Debt) had been the applicable rate for the entire reference period;



13









 






     (3) Fixed Charges related to any Debt or Disqualified or Preferred Stock no longer
outstanding or to be repaid or redeemed on the transaction date, except for Interest
Expense accrued during the reference period under a revolving credit to the extent of the
commitment thereunder (or under any successor revolving credit) in effect on the
transaction date, will be excluded; and




     (4) pro forma effect will be given to




     (A) the creation, designation or redesignation of Restricted and
Unrestricted Subsidiaries,




     (B) the acquisition or disposition of companies, divisions or lines of
businesses by the Company and its Restricted Subsidiaries, including any
acquisition or disposition of a company, division or line of business since the
beginning of the reference period by a Person that became a Restricted Subsidiary
after the beginning of the reference period, and




     (C) the discontinuation of any discontinued operations that have occurred
since the beginning of the reference period




as if such events had occurred, and, in the case of any disposition, the proceeds thereof
applied, on the first day of the reference period.




     To the extent that pro forma effect is to be given to an acquisition or disposition
of a company, division or line of business, the pro forma calculation will be based upon
the most recent four full fiscal quarters for which the relevant financial information is
available.



     “Fixed Charges” means, for any period, the sum of




     (1) Interest Expense for such period; and




     (2) the product of




     (x) cash and non-cash dividends paid, declared, accrued or accumulated on
any Disqualified Stock of the Company or Disqualified Stock or Preferred Stock of
a Restricted Subsidiary, except for dividends payable solely, or solely at the
Company’s option, in the Company’s Qualified Stock or paid to the Company or to a
Wholly Owned Restricted Subsidiary; and




     (y) a fraction, the numerator of which is one and the denominator of which
is one minus the sum of the currently effective combined Federal, state, local
and foreign tax rate applicable to the Company and its Restricted Subsidiaries;



14









 




provided that, with respect to any Restricted Subsidiary, its Fixed Charges will be included for
purposes of calculating the Fixed Charge Coverage Ratio only to the extent and in the same
proportion that the relevant Restricted Subsidiary’s Fixed Charges were included in calculating
EBITDA.




     “Foreign-Owned Parent Holding Company” means any Parent Holding Company, all of the Equity
Interests of which are owned by one or more Foreign Restricted Subsidiaries.



     “Foreign Person” means any Person that is formed under the laws of, and 50% or more of its
assets are located in, any jurisdictions outside the United States of America.



     “Foreign Restricted Subsidiary” means any Restricted Subsidiary that is not a Domestic
Restricted Subsidiary.



     “Foreign Subsidiary” means any Subsidiary that is formed under the laws of any jurisdiction
outside the United States of America.



     “GAAP” means generally accepted accounting principles in the United States of America as in
effect as of the 7.5 % Notes Issue Date.



     “Glencore” means Glencore International AG, a corporation organized under the laws of
Switzerland.



     “Grundartangi” means Nordural Grundartangi ehf and its successors.



     “Global Note” means a Note in registered global form without interest coupons.



     “Guarantee” means any obligation, contingent or otherwise, of any Person directly or
indirectly guaranteeing any Debt or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt
or other obligation of such other Person (whether arising by virtue of partnership arrangements, or
by agreement to keep-well, to purchase assets, goods, securities or services (unless such purchase
arrangements are on an arm’s-length basis and are entered into in the ordinary course of business),
to take-or-pay, or to maintain financial statement conditions or otherwise) or (ii) entered into
for purposes of assuring in any other manner the obligee of such Debt or other obligation of the
payment thereof or to protect such obligee against loss in respect thereof, in whole or in part;
provided that the term “Guarantee” does not include endorsements for collection or deposit in the
ordinary course of business or indemnities given in connection with any disposition of assets. The
term “Guarantee” used as a verb has a corresponding meaning. Notwithstanding the foregoing,
contracts for the purchase of alumina or bauxite with any Person owning the Gramercy alumina



15









 




facility or the Jamaican bauxite operations, as the case may be, and any amendments,
modifications or replacements from time to time, including any subsequent replacements, that are
not materially less favorable to the Company and its Restricted Subsidiaries than the agreements so
described shall not be deemed to be Guarantees by the Company and its Restricted Subsidiaries of
any obligations of such Person or an Investment in such Person.




     “Guarantor” means (i) each Domestic Restricted Subsidiary of the Company in existence on the
Issue Date other than any Foreign-Owned Parent Holding Company and (ii) each Restricted Subsidiary
that executes a supplemental indenture in the form of Exhibit B to this Indenture providing for the
guarantee of the payment of the Notes, or any successor obligor under its Note Guaranty pursuant to
Section 5.02, in each case unless and until such Guarantor is released from its Note Guaranty
pursuant to this Indenture.



     “Hawesville Facility” means the Company’s aluminum reduction facility located in Hawesville,
Kentucky.



     “Hedging Agreement” means (i) any interest rate swap agreement, interest rate cap agreement or
other agreement designed to protect against fluctuations in interest rates or (ii) any foreign
exchange forward contract, currency swap agreement or other agreement designed to protect against
fluctuations in foreign exchange rates or (iii) any commodity or raw material futures contract or
any other agreement designed to protect against fluctuations in commodity or raw material prices,
including any commodity forward sales contract at a fixed price.



     “Helguvik” means Nordural Helguvik ehf and its successors.



     “Holder” or “Noteholder” means the registered holder of any Note.



     “Incur” means, with respect to any Debt or Capital Stock, to incur, create, issue, assume or
Guarantee such Debt or Capital Stock. If any Person becomes a Restricted Subsidiary on any date
after the Issue Date (including by redesignation of an Unrestricted Subsidiary or failure of an
Unrestricted Subsidiary to meet the qualifications necessary to remain an Unrestricted Subsidiary),
the Debt and Capital Stock of such Person outstanding on such date will be deemed to have been
Incurred by such Person on such date for purposes of Section 4.06, but will not be considered the
sale or issuance of Equity Interests for purposes of Section 4.10 or Section 4.13. The accretion
of original issue discount or payment of interest in kind will not be considered an Incurrence of
Debt.



     “Indenture” means this indenture, as amended or supplemented from time to time.



     “Intercreditor Agreement” means the Intercreditor Agreement, in the form attached as Exhibit C
to this Indenture, to be entered into at a future date, if



16









 




at all, between the Noteholder Collateral Agent and the First Lien Collateral Agent,
acknowledged by the Company and the Guarantors, as amended, restated, supplemented or otherwise
modified from time to time.




     “Interest Expense” means, for any period, the consolidated interest expense of the Company and
its Restricted Subsidiaries determined in accordance with GAAP, plus, to the extent not included in
such consolidated interest expense, and to the extent incurred, accrued or payable by the Company
or its Restricted Subsidiaries, without duplication, (i) interest expense attributable to Sale and
Leaseback Transactions, (ii) amortization of debt discount and debt issuance costs, (other than
debt issuance costs incurred in connection with the offering of the Notes, the 7.5% Notes and the
Convertible Notes offering and any other debt issuance costs incurred on or prior to the Issue
Date, which costs shall be excluded from Interest Expense); provided that expenses relating to the
early retirement of Debt shall not be deemed Debt issuance costs, (iii) capitalized interest, (iv)
non-cash interest expense, (v) commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers’ acceptance financing, (vi) net payments made, or less any net
payments received, pursuant to Hedging Agreements (other than Hedging Agreements relating to
commodities or raw materials), and amortization of fees in respect thereof; provided that (a) such
Hedging Agreement was entered into for the purpose of hedging interest rate or currency rate risk
with respect to Debt of the Company (the “underlying Debt”) and (b) payments made or received in
respect of hedges of the principal amount of the underlying Debt shall be excluded, and (vii) any
of the above expenses with respect to Debt of another Person Guaranteed by the Company or any of
its Restricted Subsidiaries (other than Non-Recourse Debt of a Joint Venture or Unrestricted
Subsidiary Guaranteed solely pursuant to a Limited Recourse Guarantee).



     “Interest Payment Date” means each May 15 and November 15 of each year, commencing May 15,
2010.



     “Investment” means, for any Person,




     (1) any direct or indirect advance, loan or other extension of credit to another
Person,




     (2) any capital contribution to another Person, by means of any transfer of cash or
other property or in any other form,




     (3) any purchase or acquisition of Equity Interests, bonds, notes or other Debt, or
other instruments or securities issued by another Person, including the receipt of any of
the above as consideration for the disposition of assets or rendering of services, or




     (4) any Guarantee of any obligation of another Person.



17









 





     If the Company or any Restricted Subsidiary (x) sells or otherwise disposes of any Equity
Interests of any direct or indirect Restricted Subsidiary so that, after giving effect to that sale
or disposition, such Person is no longer a Subsidiary of the Company, or (y) designates any
Restricted Subsidiary as an Unrestricted Subsidiary in accordance with Section 4.16, all remaining
Investments of the Company and the Restricted Subsidiaries in such Person shall be deemed to have
been made at such time.



     “Issue Date” means the date on which the Notes are originally issued under this Indenture.



     “Joint Venture” means any joint venture or partnership between the Company or any Restricted
Subsidiary and any other Person (other than an Unrestricted Subsidiary), whether or not such joint
venture or partnership is a Subsidiary of the Company or any Restricted Subsidiary.



     “Joint Venture Holding Company” means any Subsidiary of the Company the activities of which
are limited, directly or indirectly, to making and owning Equity Interests and other Investments in
a Joint Venture or Unrestricted Subsidiary and activities incidental thereto, including
participation in financing arrangements of such Joint Venture or Unrestricted Subsidiary (but in
each case only for so long as its activities are so limited).



     “judgment default” has the meaning assigned to such term in Section 6.01.



     “Legacy Domestic Subsidiary” means any of the Company’s Domestic Restricted Subsidiaries in
existence on the Issue Date so long as such Subsidiary does not directly or indirectly own Equity
Interests in, or is the obligee under Debt Incurred by, a Foreign Restricted Subsidiary.



     “Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including any conditional sale or other title retention agreement or Sale and Leaseback
Transaction).



     “Limited Recourse Guaranty” means, with respect to any Non-Recourse Debt of a Joint Venture or
Unrestricted Subsidiary, any Guarantee of such Debt by any related Joint Venture Holding Company,
including a pledge by any such Joint Venture Holding Company of the Capital Stock and other
Investments held in such Joint Venture or Unrestricted Subsidiary, provided that in any event such
Guarantee and pledge are non-recourse in all respects to the Company and its Restricted
Subsidiaries other than such Joint Venture Holding Company.



     “Limited Recourse Parent Guaranty” means, with respect to any Debt of a Foreign Restricted
Subsidiary, any Guarantee of such Debt by any related Parent Holding Company, including a pledge by
any such related Parent Holding Company of the Capital Stock and other Investments held in such
Foreign



18









 




Restricted Subsidiary or any other Parent Holding Company in respect of such Foreign
Restricted Subsidiary.




     “Mortgages” means, collectively, (x) the mortgages, deeds of trust and similar instruments
required to be granted pursuant to Section 4.19(a) of this Indenture with respect to real property
owned by the Company or a Guarantor on the Issue Date and (y) any mortgages, deeds of trust and
similar instruments required to be granted pursuant to Section 4.19(b) of this Indenture with
respect to real property acquired by the Company or a Guarantor or owned by a future Guarantor
after the Issue Date.



     “Moody’s” means Moody’s Investors Service, Inc. and its successors.



     “Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds of such Asset Sale in
the form of cash (including (i) payments in respect of deferred payment obligations to the extent
corresponding to principal, but not interest, when received in the form of cash, and (ii) proceeds
from the conversion of other consideration received when converted to cash), net of




     (1) brokerage commissions and other fees and expenses related to such Asset Sale,
including fees and expenses of counsel, accountants and investment bankers;




     (2) provisions for taxes as a result of such Asset Sale taking into account the
consolidated results of operations of the Company and its Restricted Subsidiaries;




     (3) payments required to be made to holders of minority interests in Restricted
Subsidiaries as a result of such Asset Sale or, except to the extent that any such asset
disposed of in such Asset Sale was Collateral, to repay Debt outstanding at the time of
such Asset Sale that is secured by a Lien on the property or assets sold; and




     (4) appropriate amounts to be provided in conformity with GAAP as a reserve against
liabilities associated with such Asset Sale, including pension and other post-employment
benefit liabilities, liabilities related to environmental matters and indemnification
obligations associated with such Asset Sale, with any subsequent reduction of the reserve
other than by payments made and charged against the reserved amount to be deemed a receipt
of cash.



     “Non-Recourse Debt” means Debt as to which (i) neither the Company nor any Restricted
Subsidiary (other than a Joint Venture Holding Company) provides any Guarantee and as to which the
lenders have agreed or have been notified in writing that they will not have any recourse to the
stock or assets of the Company or any Restricted Subsidiary (other than a Limited Recourse Guaranty
by a Joint Venture Holding Company) and (ii) no default thereunder would, as



19









 




such, constitute a default under any Debt of the Company or any Restricted Subsidiary (other
than Debt of a Joint Venture Holding Company).




     “Nordural Holding Company” means any Restricted Subsidiary of the Company that has no assets
and conducts no operations other than the direct or indirect holding of Equity Interests and other
Investments in Grundartangi and/or Helguvik and activities incidental thereto, including
participation in financing arrangements of Grundartangi and/or Helguvik (but in each case only for
so long as its activities are so limited), and the receipt, reinvestment or distribution of
dividends, interest and other distributions.



     “Notes” has the meaning assigned to such term in the Recitals.



     “Note Guaranty” means the guaranty of the Notes by a Guarantor pursuant to this Indenture.



     “Noteholder Collateral Agent” means the Trustee in its capacity as the collateral agent for
the Holders of the Notes or any collateral agent appointed by the Trustee pursuant to this
Indenture and the Collateral Agreements.



     “Obligations” means, with respect to any Debt, all obligations (whether in existence on the
Issue Date or arising afterwards, absolute or contingent, direct or indirect) for or in respect of
principal (when due, upon acceleration, upon redemption, upon mandatory repayment or repurchase
pursuant to a mandatory offer to purchase, or otherwise), premium, interest, penalties, fees,
indemnification, reimbursement and other amounts payable and liabilities with respect to such Debt,
including all interest accrued or accruing after the commencement of any bankruptcy, insolvency or
reorganization or similar case or proceeding at the contract rate (including, without limitation,
any contract rate applicable upon default) specified in the relevant documentation, whether or not
the claim for such interest is allowed as a claim in such case or proceeding.



     “Offer to Purchase” has the meaning assigned to such term in Section 3.04.



     “Offering Circular and Consent Solicitation Statement” means the offering circular and consent
solicitation statement with respect to the Notes dated October 28, 2009, as supplemented on
November 12, 2009 and November 13, 2009.



     “Officer” means the chairman of the Board of Directors, the president or chief executive
officer, any vice president, the chief financial officer, the treasurer or any assistant treasurer,
or the secretary or any assistant secretary, of the Company.



     “Officers’ Certificate” means a certificate signed in the name of the Company (i) by the
chairman of the Board of Directors, the president or chief



20









 




executive officer or a vice president and (ii) by the chief financial officer, the treasurer
or any assistant treasurer or the secretary or any assistant secretary; provided that one of the
Officers signing an Officers’ Certificate pursuant to Section 4.18 shall be the principal
executive, financial or accounting officer of the Company.




     “Opinion of Counsel” means a written opinion signed by legal counsel, who may be an employee
of or counsel to the Company, satisfactory to the Trustee.



     “Original Notes” means the Notes issued on the Issue Date and any Notes issued in replacement
thereof.



     “Parent Holding Company” means any Restricted Subsidiary of the Company (including any
Nordural Holding Company) that has no assets and conducts no operations other than the direct or
indirect holding of Equity Interests or other Investments in a Foreign Restricted Subsidiary of the
Company and activities incidental thereto, including participation in financing arrangements of
such Subsidiary (but only for so long as its activities are so limited), and the receipt,
reinvestment or distribution of dividends, interest and other distributions.



     “Paying Agent” refers to a Person appointed by the Company pursuant to Section 2.03 to
perform the obligations in respect of payments made or funds held in respect of the Notes.



     “Permitted Business” means the business of reducing, refining, processing and selling alumina,
primary aluminum and aluminum products, and any business reasonably related, incidental or
ancillary thereto.



     “Permitted Debt” has the meaning assigned to such term in Section 4.06.



     “Permitted Holders” means any or all of the following:




     (1) Glencore; and




     (2) any Person both the Capital Stock and the Voting Stock of which (or in the case
of a trust, the beneficial interests in which) is owned 80% by the Person specified in
clause (1).



     “Permitted Investments” means:




     (1) any Investment in the Company or in a Restricted Subsidiary that is engaged in a
Permitted Business;




     (2) any Investment in Cash Equivalents;




     (3) any Investment by the Company or any Subsidiary of the Company in a Person, if as
a result of such Investment,



21









 






     (A) such Person becomes a Restricted Subsidiary engaged in a Permitted
Business, or




     (B) such Person is merged or consolidated with or into, or transfers or
conveys substantially all its assets to, or is liquidated into, the Company or a
Restricted Subsidiary engaged in a Permitted Business;




     (4) Investments received as non-cash consideration in an Asset Sale made pursuant to
and in compliance with Section 4.13; provided that such Investments shall be pledged as
Collateral to the extent the assets subject to such Asset Sale constituted Collateral;




     (5) any Investment made in exchange for, or out of the net cash proceeds of, a
substantially concurrent offering of Qualified Equity Interests of the Company; provided
that any proceeds of the issuance of such Qualified Equity Interests shall not be included
in making the calculations under clause (3) of paragraph (a) of Section 4.07;




     (6) Hedging Agreements otherwise permitted under this Indenture;




     (7) (i) receivables owing to the Company or any Restricted Subsidiary if created or
acquired in the ordinary course of business, (ii) endorsements for collection or deposit
in the ordinary course of business, and (iii) securities, instruments or other obligations
received in compromise or settlement of debts created in the ordinary course of business,
or by reason of a composition or readjustment of debts or reorganization of another
Person, or in satisfaction of claims or judgments;




     (8) payroll, travel and other loans or advances to, or Guarantees issued to support
the obligations of, officers, directors and employees (including loans or Guarantees to
satisfy tax withholding obligations of such persons upon the exercise of options or the
vesting of performance shares), in each case in the ordinary course of business, not in
excess of $2.0 million outstanding at any time;




     (9) extensions of credit to customers and suppliers in the ordinary course of
business; and




     (10) Investments in any Joint Venture directly or indirectly owning the Gramercy
alumina facility, a 49% interest in a Jamaican partnership that owns bauxite mining
operations and related assets on or after the 7.5% Notes Issue Date (a) in an amount not
to exceed $11.5 million, plus any closing or post-closing purchase price adjustments,
which Investments are used to finance the acquisition of such facility, partnership
interests and related assets by such Joint Venture, (b) in



22









 






amounts necessary to fund obligations of such Joint Venture with respect to
environmental costs, workers’ compensation, pensions and benefit plans or self-insurance
liabilities and other related expenses in an amount not to exceed $15.0 million and (c)
made or deemed to be made as a result of the Company and its Restricted Subsidiaries’
funding or obligation to fund one-half of such Joint Venture’s capital expenditures.



     “Permitted Liens” means:




     (1) Liens existing on the Issue Date not otherwise constituting Permitted Liens;




     (2) Liens securing Debt pursuant to the Notes or any Note Guaranty and Obligations in
respect thereof;




     (3) Liens securing Debt under or with respect to the Credit Agreement Incurred
pursuant to clause (i) of Section 4.06(b) and Obligations in respect thereof on (i)
current assets (other than the Collateral Proceeds Account) or (ii) the Collateral;
provided that any such Liens on the Collateral are on a pari passu basis with the Liens
securing the Debt pursuant to the Notes, the Note Guarantees and Obligations in respect
thereof;




     (4) pledges or deposits under worker’s compensation laws, unemployment insurance laws
or similar legislation, or good faith deposits in connection with bids, tenders, contracts
or leases, or to secure public or statutory obligations (including, without limitation,
obligations pursuant to Environmental Laws), surety bonds, customs duties and the like, or
for the payment of rent, in each case incurred in the ordinary course of business and not
securing Debt;




     (5) Liens imposed by law, such as carriers’, vendors’, warehousemen’s and mechanics’
liens, in each case for sums not yet due or being contested in good faith and by
appropriate proceedings;




     (6) Liens in respect of taxes and other governmental assessments and charges which
are not yet due or which are being contested in good faith and by appropriate proceedings;




     (7) Liens securing reimbursement obligations with respect to letters of credit that
solely encumber documents and other property relating to such letters of credit and the
proceeds thereof;




     (8) survey exceptions, minor encumbrances, easements or reservations of, or rights of
others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the use of real
property, not materially



23









 






interfering with the conduct of the business of the Company and its Restricted
Subsidiaries;




     (9) licenses or leases or subleases as licensor, lessor or sublessor of any of its
property, including intellectual property, in the ordinary course of business;




     (10) customary Liens in favor of trustees and escrow agents, and netting and setoff
rights, banker’s liens and the like in favor of financial institutions and counterparties
to financial obligations and instruments, including netting and setoff rights with respect
to (but not collateral pledged to secure) obligations under Hedging Agreements;




     (11) Liens on assets pursuant to merger agreements, stock or asset purchase
agreements and similar agreements in respect of the disposition of such assets;




     (12) options, put and call arrangements, rights of first refusal and similar rights
and customary reciprocal easements and other rights of use relating to Investments in
joint ventures, partnerships and the like, or relating to ownership of undivided interests
in assets subject to a joint ownership or similar agreement;




     (13) judgment liens, and Liens securing appeal bonds or letters of credit issued in
support of or in lieu of appeal bonds, so long as (x) no judgment default has occurred and
is continuing and (y) the aggregate amount of all obligations secured by such judgment
liens and other Liens described in this clause does not at any time exceed $10.0 million;




     (14) Liens on property of a Person at the time such Person becomes a Restricted
Subsidiary, provided such Liens were not created in contemplation thereof and do not
extend to any other property of the Company or any Restricted Subsidiary;




     (15) Liens on property at the time the Company or any of the Restricted Subsidiaries
acquires such property, including by means of a merger or consolidation with or into the
Company or a Restricted Subsidiary, provided such Liens were not created in contemplation
thereof and do not extend to any other property of the Company or any Restricted
Subsidiary;




     (16) Liens incurred or assumed in connection with the issuance of revenue bonds the
interest on which is tax-exempt under the Internal Revenue Code;




     (17) Liens securing or comprising a Limited Recourse Guaranty;



24









 






     (18) extensions, renewals or replacements of any Liens referred to in clauses (1),
(14), (15) or (16) in connection with the refinancing of the obligations secured thereby,
provided that such Lien does not extend to any other property and, except as contemplated
by the definition of “Permitted Refinancing Debt,” the amount secured by such Lien is not
increased;




     (19) Liens on assets of Foreign Restricted Subsidiaries and the related Parent
Holding Companies securing Debt of Foreign Restricted Subsidiaries and the related Limited
Recourse Parent Guaranty permitted to be Incurred under this Indenture (and Obligations in
respect thereof), including any Liens constituting encumbrances or restrictions on the
ability of the Company or any of its Restricted Subsidiaries to dispose of the Equity
Interests of any such Foreign Restricted Subsidiary; and




     (20) other Liens securing Debt (and Obligations in respect thereof) in an aggregate
amount not to exceed $150.0 million at any time outstanding (including without limitation
to secure Debt Incurred pursuant to clause (b)(1) under Section 4.06), including without
limitation Liens having the same or higher priority as the Liens on the Collateral
securing the Debt pursuant to the Notes, the Note Guarantees and Obligations in respect
thereof.



     “Permitted Refinancing Debt” has the meaning assigned to such term in Section 4.06(b).



     “Person” means an individual, a corporation, a partnership, a limited liability company, an
association, a trust or any other entity, including a government or political subdivision or an
agency or instrumentality thereof.



     “Preferred Stock” means, with respect to any Person, any and all Capital Stock which is
preferred as to the payment of dividends or distributions, upon liquidation or otherwise, over
another class of Capital Stock of such Person.



     “principal” of any Debt means the principal amount of such Debt, (or if such Debt was issued
with original issue discount, the face amount of such Debt less the remaining unamortized portion
of the original issue discount of such Debt), together with, unless the context otherwise
indicates, any premium then payable on such Debt.



     “Public Equity Offering” means an underwritten primary public offering, after the Issue Date,
of Qualified Stock of the Company pursuant to an effective registration statement under the
Securities Act other than an issuance registered on Form S-4 or S-8 or any successor thereto or any
issuance pursuant to employee benefit plans or otherwise in compensation to officers, directors or
employees.




25











 





     “Qualified Equity Interests” means all Equity Interests of a Person other than Disqualified
Equity Interests.



     “Qualified Stock” means all Capital Stock of a Person other than Disqualified Stock.



     “refinance” has the meaning assigned to such term in  Section 4.06.



     “Register” has the meaning assigned to such term in  Section 2.09.



     “Registrar” means a Person engaged to maintain the Register.



     “Regular Record Date” for the interest payable on any Interest Payment Date means the May 1 or
November 1 (whether or not a Business Day) next preceding such Interest Payment Date.



     “Related Party Transaction” has the meaning assigned to such term in  Section 4.14.



     “repayment date” means such time as Glencore is no longer providing any letters of credit to
support the Hawesville Facility industrial revenue bonds outstanding on the Issue Date.



     “Responsible Officer” means with respect to the Trustee, any officer assigned to the Corporate
Trust Office with direct responsibility for the administration of this Indenture, and also, with
respect to a particular matter, any other officer to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular subject.



     “Restricted Payment” has the meaning assigned to such term in  Section 4.07.



     “Restricted Subsidiary” means any Subsidiary of the Company other than an Unrestricted
Subsidiary.



     “S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., and its
successors.



     “Sale and Leaseback Transaction” means, with respect to any Person, an arrangement whereby
such Person enters into a lease of property previously transferred by such Person to the lessor.



     “Second-Priority Lien Obligations” means all Obligations with respect to the Notes and the
Note Guarantees.



     “Second-Priority Liens” means any Liens securing the Second-Priority Lien Obligations granted
by the Company, the existing Guarantors or any future Guarantor.



26









 





     “Securities Act” means the Securities Act of 1933.



     “Security Agreement” means the security agreement, dated as of December 10, 2009, among the
Collateral Agent, the Company and the other grantors party thereto.



     “Significant Restricted Subsidiary” means any Restricted Subsidiary, or group of Restricted
Subsidiaries, other than any Legacy Domestic Subsidiary, or group of Legacy Domestic Subsidiaries,
that would, taken together, be a “significant subsidiary” as defined in  Article 1, Rule 1-02
(w)(1) or (2) of Regulation S-X promulgated under the Securities Act, as that regulation is in
effect on the 7.5% Notes Issue Date.



     “Stated Maturity” means (i) with respect to any Debt, the date specified as the fixed date on
which the final installment of principal of such Debt is due and payable or (ii) with respect to
any scheduled installment of principal of or interest on any Debt, the date specified as the fixed
date on which such installment is due and payable as set forth in the documentation governing such
Debt, not including any contingent obligation to repay, redeem or repurchase prior to the regularly
scheduled date for payment.



     “Subordinated Debt” means (i) any Debt of the Company or any Guarantor which is subordinated
in right of payment to the Notes or the Note Guaranty, as applicable, pursuant to a written
agreement to that effect and (ii) only for purposes of Section 4.07, and not for any other
purposes under this Indenture, including without limitation Section 4.06 and any Debt Incurred
pursuant to clause (xiv) under Section 4.06.



     “Subsidiary” means with respect to any Person, any corporation, association or other business
entity of which more than 50% of the outstanding Voting Stock is owned, directly or indirectly, by,
or, in the case of a partnership, the sole general partner or the managing partner or the only
general partners of which are, such Person and one or more Subsidiaries of such Person (or a
combination thereof). Unless otherwise specified, “Subsidiary” means a Subsidiary of the Company.



     “Title Insurance Policy” means, with respect to each applicable Mortgage, an ALTA mortgagee
title insurance policy insuring that such Mortgage creates a valid Lien on the property encumbered
thereby of the requisite priority, free and clear of exceptions from coverage other than Permitted
Liens, standard exceptions and exclusions from coverage and such other exceptions and encumbrances
described in such Mortgage.



     “Total Assets” means the total combined assets of the Company’s Foreign Restricted
Subsidiaries, as shown on the most recent balance sheet of the Company provided to the Trustee
pursuant to this Indenture.



27









 





     “Trustee” means the party named as such in the first paragraph of this Indenture or any
successor trustee under this Indenture pursuant to  Article 7.



     “Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended.



     “U.S. Government Obligations” means obligations issued or directly and fully guaranteed or
insured by the United States of America or by any agent or instrumentality thereof; provided that
the full faith and credit of the United States of America is pledged in support thereof.



     “Unrestricted Subsidiary” means (i) Helguvik and (ii) any other Subsidiary of the Company that
at the time of determination has previously been designated, and, in each case, continues to be, an
Unrestricted Subsidiary in accordance with  Section 4.16.



     “Unsecured Indebtedness” means Debt of the Company or any Guarantor that (i) does not have a
Stated Maturity, a scheduled amortization or any required principal payment (other than repurchase
rights at a holder’s option upon a change of control or the occurrence of other contingencies that
are customary for debt of such type) prior to the Stated Maturity of the Notes, (ii) does not bear
interest payable in cash (prior to maturity or repayment of principal of the Notes) at a cash rate
equal to or higher than the cash interest rate on the Notes, and (iii) is not secured by any Lien
of any nature whatsoever on any of the properties or assets of the Company or any Restricted
Subsidiary whether owned at the Issue Date or thereafter acquired.



     “Voting Stock” means, with respect to any Person, Capital Stock of any class or kind
ordinarily having the power to vote for the election of directors, managers or other voting members
of the governing body of such Person.



     “Wholly Owned” means, with respect to any Restricted Subsidiary, a Restricted Subsidiary all
of the outstanding Capital Stock of which (other than any director’s qualifying shares) is owned by
the Company and one or more Wholly Owned Restricted Subsidiaries (or a combination thereof).



     Section 1.02. Rules of Construction. Unless the context otherwise requires or except as
otherwise expressly provided,




     (1) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;




     (2) “herein,” “hereof” and other words of similar import refer to this Indenture as a
whole and not to any particular Section, Article or other subdivision;



28









 






     (3) all references to Sections or Articles or Exhibits refer to Sections or Articles
or Exhibits of or to this Indenture unless otherwise indicated; and




     (4) references to agreements or instruments, or to statutes or regulations, are to
such agreements or instruments, or statutes or regulations, as amended from time to time
(or to successor statutes and regulations).



ARTICLE 2

The Notes




     Section 2.01. Form, Dating and Denominations; Legends. (a) The Notes and the Trustee’s
certificate of authentication will be substantially in the form attached as Exhibit A. The terms
and provisions contained in the form of the Notes annexed as Exhibit A constitute, and are hereby
expressly made, a part of this Indenture. The Notes may have notations, legends or endorsements
required by law, rules of or agreements with national securities exchanges to which the Company is
subject, or usage. Each Note will be dated the date of its authentication. The Notes will be
issuable in denominations of $1,000 in principal amount and any multiple of $10 in excess of
$1,000.



     (b) Each Global Note, whether or not an Original Note or an Additional Note, will bear the DTC
Legend.



     Section 2.02. Execution and Authentication; Additional Notes.



     (a) An Officer shall execute the Notes for the Company by facsimile or manual signature in the
name and on behalf of the Company. If an Officer whose signature is on a Note no longer holds that
office at the time the Note is authenticated, the Note will still be valid.



     (b) A Note will not be valid until the Trustee manually signs the certificate of
authentication on the Note, with the signature conclusive evidence that the Note has been
authenticated under this Indenture.



     (c) At any time and from time to time upon or after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication.
The Trustee will authenticate and deliver:




     (i) Notes for original issue in the aggregate principal amount not to exceed
$245,475,800, and




     (ii) Additional Notes from time to time for original issue in aggregate principal amounts
specified by the Company but only in exchange for Existing Notes and after the following
conditions have been met:



29









 






     (1) Receipt by the Trustee of an Officers’ Certificate specifying




     (A) the amount of Notes to be authenticated and the date on which the Notes are
to be authenticated,




     (B) that such Notes are being issued in exchange for Existing Notes,




     (C) in the case of Additional Notes, that the issuance of such Notes does not
contravene any provision of Article 4,




     (D) whether the Notes are to be issued as one or more Global Notes or
Certificated Notes, and




     (E) other information the Company may determine to include or the Trustee may
reasonably request.




     (2) In the case of Additional Notes, receipt by the Trustee of an Opinion of Counsel
confirming that (subject to customary assumptions) the Holders of the outstanding Notes
will be subject to federal income tax in the same amounts, in the same manner and at the
same times as would have been the case if such Additional Notes were not issued.



     The Trustee shall have the right to decline to authenticate and deliver any Additional Notes
under this Section if the Trustee, determines that such action may not lawfully be taken by the
Company or if the Trustee in good faith by its board of directors or trustee, executive committee,
or a trust committee of directors or trustees or Trust Officers shall determine that such action
would expose the Trustee to personal liability to existing Note Holders.



     Section 2.03. Registrar, Paying Agent and Authenticating Agent; Paying Agent to Hold Money
in Trust. (a) The Company may appoint one or more Registrars and one or more Paying Agents, and
the Trustee may appoint an Authenticating Agent, in which case each reference in this Indenture to
the Trustee in respect of the obligations of the Trustee to be performed by that Agent will be
deemed to be references to the Agent. The Company may act as Registrar or (except for purposes of
Article 8) Paying Agent. In each case the Company and the Trustee will enter into an appropriate
agreement with the Agent implementing the provisions of this Indenture relating to the obligations
of the Trustee to be performed by the Agent and the related rights. The Company initially appoints
the Trustee as Registrar and Paying Agent.



     (b) The Company will require each Paying Agent other than the Trustee to agree in writing that
the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal of and interest on the Notes and will promptly notify
the Trustee of any default by the Company in making any such payment. The Company at any time



30









 




may require a Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of any payment default,
upon written request to a Paying Agent, require the Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent will have no
further liability for the money so paid over to the Trustee.




     Section 2.04. Replacement Notes. If a mutilated Note is surrendered to the Trustee or if a
Holder claims that its Note has been lost, destroyed or wrongfully taken, the Company will issue
and the Trustee will authenticate a replacement Note of like tenor and principal amount and bearing
a number not contemporaneously outstanding. Every replacement Note is an additional obligation of
the Company and entitled to the benefits of this Indenture. If required by the Trustee or the
Company, an indemnity must be furnished that is sufficient in the judgment of both the Trustee and
the Company to protect the Company and the Trustee from any loss they may suffer if a Note is
replaced. The Company and the Trustee may charge the Holder for the expenses of the Company and
the Trustee in replacing a Note. In case the mutilated, lost, destroyed or wrongfully taken Note
has become or is about to become due and payable, the Company in its discretion may pay the Note
instead of issuing a replacement Note.



     Section 2.05. Outstanding Notes. (a) Notes outstanding at any time are all Notes that have
been authenticated by the Trustee except for




     (i) Notes cancelled by the Trustee or delivered to it for cancellation;




     (ii) any Note which has been replaced pursuant to Section 2.04 unless and until the
Trustee and the Company receive proof satisfactory to them that the replaced Note is held
by a protected purchaser; and




     (iii) on or after the maturity date or any redemption date or date for purchase of
the Notes pursuant to an Offer to Purchase, those Notes payable or to be redeemed or
purchased on that date for which the Trustee (or Paying Agent, other than the Company or
an Affiliate of the Company) holds money sufficient to pay all amounts then due.



     (b) A Note does not cease to be outstanding because the Company or one of its Affiliates holds
the Note, provided that in determining whether the Holders of the requisite principal amount of the
outstanding Notes have given or taken any request, demand, authorization, direction, notice,
consent, waiver or other action hereunder, Notes owned by the Company or any Affiliate of the
Company will be disregarded and deemed not to be outstanding, (it being understood that in
determining whether the Trustee is protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other action, only Notes which a Responsible
Officer of the Trustee knows to be



31









 




so owned will be so disregarded). Notes so owned which have been pledged in good faith may be
regarded as outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Notes and that the pledgee is not the Company or any Affiliate
of the Company.




     Section 2.06. Temporary Notes. Until definitive Notes are ready for delivery, the Company
may prepare and the Trustee will authenticate temporary Notes. Temporary Notes will be
substantially in the form of definitive Notes but may have insertions, substitutions, omissions and
other variations determined to be appropriate by the Officer executing the temporary Notes, as
evidenced by the execution of the temporary Notes. If temporary Notes are issued, the Company will
cause definitive Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of
the temporary Notes at the office or agency of the Company designated
for the purpose pursuant to Section 4.02, without charge to the Holder. Upon surrender for cancellation of any temporary
Notes the Company will execute and the Trustee will authenticate and deliver in exchange therefor a
like principal amount of definitive Notes of authorized denominations. Until so exchanged, the
temporary Notes will be entitled to the same benefits under this Indenture as definitive Notes.



     Section 2.07. Cancellation. The Company at any time may deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and may deliver to the Trustee for cancellation any Notes
previously authenticated hereunder which the Company has not issued and sold. Any Registrar or the
Paying Agent will forward to the Trustee any Notes surrendered to it for transfer, exchange or
payment. The Trustee will cancel all Notes surrendered for transfer, exchange, payment or
cancellation and dispose of them in accordance with its normal procedures or the written
instructions of the Company. The Company may not issue new Notes to replace Notes it has paid in
full or delivered to the Trustee for cancellation.



     Section 2.08. CUSIP and CINS Numbers. The Company in issuing the Notes may use “CUSIP” and
“CINS” numbers, and the Trustee will use CUSIP numbers or CINS numbers in notices of redemption or
exchange or in Offers to Purchase as a convenience to Holders, the notice to state that no
representation is made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of redemption or exchange or Offer to Purchase. The Company will promptly
notify the Trustee in writing of any change in the CUSIP or CINS numbers.



     Section 2.09. Registration, Transfer and Exchange. (a) The Notes will be issued in
registered form only, without coupons, and the Company shall cause the Trustee to maintain a
register (the “Register”) of the Notes, for registering the record ownership of the Notes by the
Holders and transfers and exchanges of the Notes.



32









 





     (b) (i) Each Global Note will be registered in the name of the Depositary or its nominee and,
so long as DTC is serving as the Depositary thereof, will bear the DTC Legend.




     (ii) Each Global Note will be delivered to the Trustee as custodian for the
Depositary. Transfers of a Global Note (but not a beneficial interest therein) will be
limited to transfers thereof in whole, but not in part, to the Depositary, its successors
or their respective nominees, except that transfers of portions thereof in the form of
Certificated Notes may be made upon request of an Agent Member (for itself or on behalf of
a beneficial owner) by written notice given to the Trustee by or on behalf of the
Depositary in accordance with customary procedures of the Depositary and in compliance
with this Section and Section 2.10.




     (iii) Agent Members will have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner
and Holder of such Global Note for all purposes whatsoever. Notwithstanding the
foregoing, the Depositary or its nominee may grant proxies and otherwise authorize any
Person (including any Agent Member and any Person that holds a beneficial interest in a
Global Note through an Agent Member) to take any action which a Holder is entitled to take
under this Indenture or the Notes, and nothing herein will impair, as between the
Depositary and its Agent Members, the operation of customary practices governing the
exercise of the rights of a holder of any security.




     (iv) If (x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for a Global Note and a successor depositary is not appointed by
the Company within 90 days of the notice or (y) an Event of Default has occurred and is
continuing and the Trustee has received a request from the Depositary, the Trustee will
promptly exchange each beneficial interest in the Global Note for one or more Certificated
Notes in authorized denominations having an equal aggregate principal amount registered in
the name of the owner of such beneficial interest, as identified to the Trustee by the
Depositary, and thereupon the Global Note will be deemed canceled.



     (c) Each Certificated Note will be registered in the name of the Holder thereof or its
nominee.



     (d) A Holder may transfer a Note (or a beneficial interest therein) to another Person or
exchange a Note (or a beneficial interest therein) for another Note or Notes of any authorized
denomination by presenting to the Trustee a written request therefor stating the name of the
proposed transferee or requesting such an exchange. The Trustee will promptly register any
transfer or exchange



33









 




that meets the requirements of this Section by noting the same in the register maintained by
the Trustee for the purpose; provided that





     (i) no transfer or exchange will be effective until it is registered in such register
and




     (ii) the Trustee will not be required (A) to issue, register the transfer of or
exchange any Note for a period of 15 days before a selection of Notes to be redeemed or
purchased pursuant to an Offer to Purchase, (B) to register the transfer of or exchange
any Note so selected for redemption or purchase in whole or in part, except, in the case
of a partial redemption or purchase, that portion of any Note not being redeemed or
purchased, or (C) if a redemption or a purchase pursuant to an Offer to Purchase is to
occur after a Regular Record Date but on or before the corresponding Interest Payment
Date, to register the transfer of or exchange any Note on or after the Regular Record Date
and before the date of redemption or purchase. Prior to the registration of any transfer,
the Company, the Trustee and their agents will treat the Person in whose name the Note is
registered as the owner and Holder thereof for all purposes (whether or not the Note is
overdue), and will not be affected by notice to the contrary.



     From time to time the Company will execute and the Trustee will authenticate additional Notes
as necessary in order to permit the registration of a transfer or exchange in accordance with this
Section.



     No service charge will be imposed in connection with any registration of transfer or exchange
of any Note, but the Company or the Trustee may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith (other than a transfer
tax or other similar governmental charge payable upon exchange pursuant to subsection (b)(iv)).



     (e) (i) Global Note to Certificated Note. If a beneficial interest in a Global Note is
transferred or exchanged for a Certificated Note, the Trustee will (x) record a decrease in the
principal amount of such Global Note equal to the principal amount of such transfer or exchange and
(y) deliver one or more new Certificated Notes in authorized denominations having an equal
aggregate principal amount to the transferee (in the case of a transfer) or the owner of such
beneficial interest (in the case of an exchange), registered in the name of such transferee or
owner, as applicable.




     (ii) Certificated Note to Global Note. If a Certificated Note is transferred or
exchanged for a beneficial interest in a Global Note, the Trustee will (x) cancel such
Certificated Note, (y) record an increase in the principal amount of such Global Note
equal to the principal amount of such transfer or exchange and (z) in the event that such
transfer or exchange involves less than the entire principal amount of the canceled



34









 






Certificated Note, deliver to the Holder thereof one or more new Certificated Notes
in authorized denominations having an aggregate principal amount equal to the
untransferred or unexchanged portion of the canceled Certificated Note, registered in the
name of the Holder thereof.




     (iii) Certificated Note to Certificated Note. If a Certificated Note is transferred
or exchanged for another Certificated Note, the Trustee will (x) cancel the Certificated
Note being transferred or exchanged, (y) deliver one or more new Certificated Notes in
authorized denominations having an aggregate principal amount equal to the principal
amount of such transfer or exchange to the transferee (in the case of a transfer) or the
Holder of the canceled Certificated Note (in the case of an exchange), registered in the
name of such transferee or Holder, as applicable, and (z) if such transfer or exchange
involves less than the entire principal amount of the canceled Certificated Note, deliver
to the Holder thereof one or more Certificated Notes in authorized denominations having an
aggregate principal amount equal to the untransferred or unexchanged portion of the
canceled Certificated Note, registered in the name of the Holder thereof.



     Section 2.10. Restrictions on Transfer and Exchange. The transfer or exchange of any Note
(or a beneficial interest therein) may only be made in accordance with this Section and Section
2.09 and, in the case of a Global Note (or a beneficial interest therein), the applicable rules and
procedures of the Depositary. The Trustee shall refuse to register any requested transfer or
exchange that does not comply with the preceding sentence.



ARTICLE 3

Redemption, Offer To Purchase




     Section 3.01. Optional Redemption. At any time and from time to time on or after May 15,
2011, the Company may redeem the Notes, in whole or in part, at a redemption price equal to the
percentage of principal amount set forth below plus accrued and unpaid interest to the redemption
date.



	 	 	 	 	 
	12-month period commencing	 	 	 
	May 15 in Year	 	Percentage	 
	2011
	 	 	104	%
	2012
	 	 	102	%
	2013 and thereafter
	 	 	100	%






     Section 3.02. Redemption with Proceeds of Public Equity Offering. At any time and from time
to time prior to May 15, 2011, the Company may redeem Notes with the net cash proceeds received by
the Company from any Public Equity Offering at a redemption price equal to 108% of the principal
amount plus accrued and unpaid interest to the redemption date, in an aggregate principal



35









 




amount for all such redemptions not to exceed 35% of the aggregate principal amount of the
Notes originally issued under this Indenture, provided that




     (a) in each case the redemption takes place not later than 60 days after the closing of the
related Public Equity Offering, and



     (b) not less than 65% of the aggregate principal amount of the Original Notes remains
outstanding immediately thereafter.



     Section 3.03. Method and Effect of Redemption. (a) If the Company elects to redeem Notes,
it must notify the Trustee of the redemption date and the principal amount of Notes to be redeemed
by delivering an Officers’ Certificate at least 60 days before the redemption date (unless a
shorter period is satisfactory to the Trustee). If fewer than all of the Notes are being redeemed,
the Officers’ Certificate must also specify a record date not less than 15 days after the date of
the notice of redemption is given to the Trustee, and the Trustee will select the Notes to be
redeemed pro rata, by lot or by any other method the Trustee in its sole discretion deems fair and
appropriate, in denominations of $1,000 principal amount and multiples thereof. The Trustee will
notify the Company promptly of the Notes or portions of Notes to be called for redemption. Notice
of redemption must be sent by the Company or at the Company’s request, by the Trustee in the name
and at the expense of the Company, to Holders whose Notes are to be redeemed at least 30 days but
not more than 60 days before the redemption date.



     (b) The notice of redemption will identify the Notes to be redeemed and will include or state
the following:




     (i) the redemption date;




     (ii) the redemption price, including the portion thereof representing any accrued
interest;




     (iii) the place or places where Notes are to be surrendered for redemption;




     (iv) Notes called for redemption must be so surrendered in order to collect the
redemption price;




     (v) on the redemption date the redemption price will become due and payable on Notes
called for redemption, and interest on Notes called for redemption will cease to accrue on
and after the redemption date;




     (vi) if any Note is redeemed in part, on and after the redemption date, upon
surrender of such Note, new Notes equal in principal amount to the unredeemed portion will
be issued; and



36









 






     (vii) if any Note contains a CUSIP or CINS number, no representation is being made as
to the correctness of the CUSIP or CINS number either as printed on the Notes or as
contained in the notice of redemption and that the Holder should rely only on the other
identification numbers printed on the Notes.



     (c) Once notice of redemption is sent to the Holders, Notes called for redemption become due
and payable at the redemption price on the redemption date, and upon surrender of the Notes called
for redemption, the Company shall redeem such Notes at the redemption price. Commencing on the
redemption date, Notes redeemed will cease to accrue interest. Upon surrender of any Note redeemed
in part, the Holder will receive a new Note equal in principal amount to the unredeemed portion of
the surrendered Note.



     Section 3.04. Offer to Purchase. (a) An “Offer to Purchase” means an offer by the Company
to purchase Notes as required by this Indenture. An Offer to Purchase must be made by written
offer (the “offer”) sent to the Holders. The Company will notify the Trustee at least 15 days (or
such shorter period as is acceptable to the Trustee) prior to sending the offer to Holders of its
obligation to make an Offer to Purchase, and the offer will be sent by the Company or, at the
Company’s request, by the Trustee in the name and at the expense of the Company.



     (b) The offer must include or state the following as to the terms of the Offer to Purchase:




     (i) the provision of this Indenture pursuant to which the Offer to Purchase is being
made;




     (ii) the aggregate principal amount of the outstanding Notes offered to be purchased
by the Company pursuant to the Offer to Purchase (including, if less than 100%, the manner
by which such amount has been determined pursuant to this Indenture) (the “purchase
amount”);




     (iii) the purchase price, including the portion thereof representing accrued
interest;




     (iv) an expiration date (the “expiration date”) not less than 30 days or more than 60
days after the date of the offer, and a settlement date for purchase (the “purchase date”)
not more than five Business Days after the expiration date;




     (v) information concerning the business of the Company and its Subsidiaries which the
Company in good faith believes will enable the Holders to make an informed decision with
respect to the Offer to Purchase, at a minimum to include or incorporate by reference



37









 






     (A) the most recent annual and quarterly financial statements and
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” for the Company,




     (B) a description of material developments in the Company’s business
subsequent to the date of the latest of the financial statements (including a
description of the events requiring the Company to make the Offer to Purchase),
and




     (C) if applicable, appropriate pro forma financial information concerning
the Offer to Purchase and the events requiring the Company to make the Offer to
Purchase;




     (vi) a Holder may tender all or any portion of its Notes, subject to the requirement
that any portion of a Note tendered must be in a multiple of $1,000 principal amount;




     (vii) the place or places where Notes are to be surrendered for tender pursuant to
the Offer to Purchase;




     (viii) each Holder electing to tender a Note pursuant to the offer will be required
to surrender such Note at the place or places specified in the offer prior to the close of
business on the expiration date (such Note being, if the Company or the Trustee so
requires, duly endorsed or accompanied by a duly executed written instrument of transfer);




     (ix) interest on any Note not tendered, or tendered but not purchased by the Company
pursuant to the Offer to Purchase, will continue to accrue;




     (x) on the purchase date the purchase price will become due and payable on each Note
accepted for purchase pursuant to the Offer to Purchase, and interest on Notes purchased
will cease to accrue on and after the purchase date;




     (xi) Holders are entitled to withdraw Notes tendered by giving notice, which must be
received by the Company or the Trustee not later than the close of business on the
expiration date, setting forth the name of the Holder, the principal amount of the
tendered Notes, the certificate number of the tendered Notes and a statement that the
Holder is withdrawing all or a portion of the tender;




     (xii) (A) if Notes in an aggregate principal amount less than or equal to the
purchase amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the
Company will purchase all such Notes, and (B) if the Offer to Purchase is for less than
all of the outstanding Notes and Notes in an aggregate principal amount in excess of



38









 




the purchase amount are tendered and not withdrawn pursuant to the offer, the Company
will purchase Notes having an aggregate principal amount equal to the purchase amount on a
pro rata basis, with adjustments so that only Notes in multiples of $1,000 principal
amount will be purchased;





     (xiii) if any Note is purchased in part, new Notes equal in principal amount to the
unpurchased portion of the Note will be issued; and




     (xiv) if any Note contains a CUSIP or CINS number, no representation is being made as
to the correctness of the CUSIP or CINS number either as printed on the Notes or as
contained in the offer and that the Holder should rely only on the other identification
numbers printed on the Notes.



     (c) Prior to the purchase date, the Company will accept tendered Notes for purchase as
required by the Offer to Purchase and deliver to the Trustee all Notes so accepted together with an
Officers’ Certificate specifying which Notes have been accepted for purchase. On the purchase date
the purchase price will become due and payable on each Note accepted for purchase, and interest on
Notes purchased will cease to accrue on and after the purchase date. The Trustee will promptly
return to Holders any Notes not accepted for purchase and send to Holders new Notes equal in
principal amount to any unpurchased portion of any Notes accepted for purchase in part.



     (d) The Company will comply with Rule 14e-1 under the Exchange Act and all other applicable
laws in making any Offer to Purchase, and the above procedures will be deemed modified as necessary
to permit such compliance.



ARTICLE 4

Covenants




     Section 4.01. Payment of Notes. (a) The Company agrees to pay the principal of and interest
on the Notes on the dates and in the manner provided in the Notes and this Indenture. Not later
than 9:00 A.M. (New York City time) on the due date of any principal of or interest on any Notes,
or any redemption or purchase price of the Notes, the Company will deposit with the Trustee (or
Paying Agent) money in immediately available funds sufficient to pay such amounts, provided that if
the Company or any Affiliate of the Company is acting as Paying Agent, it will, on or before each
due date, segregate and hold in a separate trust fund for the benefit of the Holders a sum of money
sufficient to pay such amounts until paid to such Holders or otherwise disposed of as provided in
this Indenture. In each case the Company will promptly notify the Trustee of its compliance with
this paragraph.



     (b) An installment of principal or interest will be considered paid on the date due if the
Trustee (or Paying Agent, other than the Company or any Affiliate



39









 




of the Company) holds on that date money designated for and sufficient to pay the installment.
If the Company or any Affiliate of the Company acts as Paying Agent, an installment of principal
or interest will be considered paid on the due date only if paid to the Holders.




     (c) The Company agrees to pay interest on overdue principal and overdue installments of
interest at the rate per annum specified in the Notes.



     (d) Payments in respect of the Notes represented by the Global Notes are to be made by wire
transfer of immediately available funds to the accounts specified by the Holders of the Global
Notes. With respect to Certificated Notes, the Company will make all payments by mailing a check to
each Holder’s registered address or, at the Company’s option, by wire transfer of immediately
available funds to the accounts specified by the Holders thereof.



     Section 4.02. Maintenance of Office or Agency. The Company will maintain in the Borough of
Manhattan, The City of New York or Wilmington, Delaware, an office or agency where Notes may be
surrendered for registration of transfer or exchange or for presentation for payment and where
notices and demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company hereby initially designates the Corporate Trust Office of the Trustee as such
office of the Company. The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the Company fails to
maintain any such required office or agency or fails to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee.



     The Company may also from time to time designate one or more other offices or agencies where
the Notes may be surrendered or presented for any of such purposes and may from time to time
rescind such designations. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.



     Section 4.03. Existence. The Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and the existence of each of its
Restricted Subsidiaries in accordance with their respective organizational documents, and the
material rights, licenses and franchises of the Company and each Restricted Subsidiary, provided
that the Company is not required to preserve any such right, license or franchise, or the existence
of any Restricted Subsidiary, if in the Company’s judgment the maintenance or preservation thereof
is no longer desirable in the conduct of the business of the Company and its Restricted
Subsidiaries taken as a whole; and provided further that this Section does not prohibit any
transaction otherwise permitted by Section 4.13 or Article 5.



40









 





     Section 4.04. Payment of Taxes and Other Claims. The Company will pay or discharge, and
cause each of its Subsidiaries to pay or discharge, before the same become delinquent (a) all
material taxes, assessments and governmental charges levied or imposed upon the Company or any
Subsidiary or its income or profits or property, and (b) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a Lien upon the property of the Company
or any Subsidiary, other than any such tax, assessment, charge or claim the amount, applicability
or validity of which is being contested in good faith by appropriate proceedings and for which
adequate reserves, if necessary, have been established.



     Section 4.05. Maintenance of Properties and Insurance. (a) The Company will cause all
properties used or useful in the conduct of its business or the business of any of its Restricted
Subsidiaries to be maintained and kept in good condition, repair and working order as, in the
judgment of the Company, may be necessary so that the business of the Company and its Restricted
Subsidiaries may be properly and advantageously conducted at all times; provided that nothing in
this Section prevents the Company or any Restricted Subsidiary from discontinuing the use,
operation or maintenance of any of such properties or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Company, desirable in the conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole.



     (b) The Company will provide or cause to be provided, for itself and its Restricted
Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds
customarily insured against by corporations similarly situated and owning like properties,
including, but not limited to, products liability insurance, physical damage insurance and public
liability insurance, with reputable insurers, in such amounts, with such deductibles and by such
methods as are customary for corporations similarly situated in the industry in which the Company
and its Restricted Subsidiaries are then conducting business.



     Section 4.06. Limitation on Debt and Disqualified or Preferred Stock.



     (a) The Company:




     (i) will not, and will not permit any of its Restricted Subsidiaries to, Incur any
Debt; and




     (ii) will not, and will not permit any Restricted Subsidiary to, Incur any
Disqualified Stock, or permit any of its Restricted Subsidiaries to Incur any Preferred
Stock (other than Disqualified or Preferred Stock of Restricted Subsidiaries held by the
Company or a Wholly-Owned Restricted Subsidiary, so long as it is so held);


provided that the Company or any Guarantor may Incur Debt and the Company or any Guarantor may
Incur Disqualified Stock if, on the date of the Incurrence, after


41









 






giving effect to the Incurrence and the receipt and application of the proceeds therefrom, the
Fixed Charge Coverage Ratio is not less than 2.0 to 1.




     (b) Notwithstanding the foregoing, the Company and, to the extent provided below, any
Restricted Subsidiary may Incur the following (“Permitted Debt”):




     (i) Debt of the Company and any Restricted Subsidiary pursuant to the Credit
Agreement, and Guarantees of such Debt by the Company or any Restricted Subsidiary;
provided that the aggregate principal amount at any time outstanding under the Credit
Agreement does not exceed the greater of (A) $100.0 million, less the aggregate amount of
all such Debt under the Credit Agreement permanently repaid pursuant to payments thereof
in accordance with Section 4.13(c)(i) and (B) the sum of the amounts equal to (x) 85% of
the book value of the accounts receivable of the Company and its consolidated Restricted
Subsidiaries and (y) 65% of the book value of the inventory of the Company and its
consolidated Restricted Subsidiaries (but excluding any accounts receivable and inventory
that are ineligible at such time for inclusion in the calculation of a borrowing base or
similar borrowing limit (if any) under the Credit Agreement), in each case as of the most
recently ended fiscal quarter of the Company for which financial statements have been
provided (or, if not timely provided, required to be provided) pursuant to Section 4.17.




     (ii) Debt of the Company or any Restricted Subsidiary to the Company or any Wholly
Owned Restricted Subsidiary so long as such Debt continues to be owed to the Company or a
Wholly Owned Restricted Subsidiary and which is, if the obligor is the Company or a
Guarantor and the obligee is not the Company or a Guarantor, subordinated in right of
payment to the Notes, except for such Debt that was Incurred after the 7.5% Notes Issue
Date to refinance Debt of Grundartangi that was owed to a third party and is outstanding
on the Issue Date (which Debt shall be deemed to have been incurred under clause (viii)
below);




     (iii) Debt of the Company pursuant to the Notes and Debt of any Guarantor pursuant to
a Note Guaranty;




     (iv) Debt of the Company or any Restricted Subsidiary (“Permitted Refinancing Debt”)
constituting an extension or renewal of, replacement of, or substitution for, or issued in
exchange for, or the net proceeds of which are used to repay, redeem, repurchase,
refinance or refund, including by way of defeasance, (all of the above, for purposes of
this clause, “refinance”) then outstanding Debt of the Company or any Restricted
Subsidiary in an amount not to exceed the principal amount of the Debt so refinanced, plus
premiums, fees and expenses; provided that




42












 






     (A) (i) in case the Debt to be refinanced is subordinated in right of
payment to the Notes, the new Debt, by its terms or by the terms of any
agreement or instrument pursuant to which it is outstanding, is expressly made
subordinate in right of payment to the Notes at least to the extent that the
Debt to be refinanced is subordinated to the Notes and (ii) in case the Debt to
be refinanced was Incurred under clause (xiv) below, the new Debt is Unsecured
Debt,




     (B) the new Debt does not have a Stated Maturity prior to the Stated
Maturity of the Debt to be refinanced, and the Average Life of the new Debt is
at least equal to the remaining Average Life of the Debt to be refinanced,




     (C) in no event may Debt of the Company be refinanced pursuant to this
clause by means of any Debt of any Restricted Subsidiary that is not a Guarantor
and in no event may Debt of a Guarantor be refinanced pursuant to this clause by
means of any Debt of any Restricted Subsidiary that is not a Guarantor, and




     (D) Debt Incurred pursuant to clauses (i), (ii), (v), (vi), (ix),
(x)(c), (xii) and (xv) of this Section 4.06(b) may not be refinanced
pursuant to this clause;



     (v) Hedging Agreements of the Company or any Restricted Subsidiary entered into in
the ordinary course of business for the purpose of limiting risks associated with the
business of the Company and its Restricted Subsidiaries and not for speculation;



     (vi) Debt of the Company or any Restricted Subsidiary with respect to letters of
credit and bankers’ acceptances issued in the ordinary course of business and not
supporting Debt, including letters of credit supporting performance, surety or appeal
bonds or indemnification, adjustment of purchase price or similar obligations incurred in
connection with the disposition of any business or assets; provided that the maximum
liability in connection with any disposition shall not exceed the gross proceeds actually
received by the Company or that Restricted Subsidiary in connection with the disposition;



     (vii) Acquired Debt, provided that after giving effect to the Incurrence thereof, the
Company could Incur at least $1.00 of Debt under Section 4.06(a);



     (viii) Debt of the Company or any Restricted Subsidiary outstanding on the Issue Date
(and, for purposes of clause (iv) (D), not constituting Permitted Debt under clauses (i),
(ii), (v), (vi), (ix) or (xii));



43









 





     (ix) Guarantees by the Company or any Guarantor of any Debt of the Company or any
Restricted Subsidiary permitted to be incurred under any other clause of this Section
4.06;



     (x) Debt of Grundartangi and any of its Restricted Subsidiaries (a) incurred to
finance the expansion of the Grundartangi primary aluminum reduction facility in an
aggregate principal amount at any time outstanding not to exceed (i) $160.0 million less
(ii) the aggregate outstanding principal amount of Permitted Refinancing Debt Incurred to
refinance such Debt, (b) incurred to refinance Debt of Grundartangi outstanding on the
7.5% Notes Issue Date or (c) incurred pursuant to a revolving credit facility to finance
working capital needs of Grundartangi, in an aggregate principal amount at any time
outstanding not to exceed $25.0 million, and any Guarantee of any such Debt incurred under
(a), (b) or (c) of this clause (x) by any Nordural Holding Company; provided that such
Debt may only be incurred if (i) such Debt is not Guaranteed by the Company or any other
Restricted Subsidiary of the Company (other than any Nordural Holding Companies) unless
Grundartangi is not subject to any restrictions or encumbrances set forth in clause (a)(i)
of Section 4.09 (other than those permitted by clause (b)(ii) thereof), in which case
such Debt may be so Guaranteed (to the extent such Guarantee is otherwise permitted to be
Incurred under this covenant) and (ii) unless such Debt is permitted to be Guaranteed by
the Company pursuant to clause (i), the lenders thereof have agreed or have been notified
in writing that they will not have any recourse to the stock or assets of the Company or
any other Restricted Subsidiary (other than any Nordural Holding Company);



     (xi) (a) Debt (including Guarantees) of any Foreign Restricted Subsidiary; provided
that, on the date of the Incurrence, after giving effect to the Incurrence and the receipt
and application of the proceeds therefrom, (i) the Fixed Charge Coverage Ratio of the
Company and its Restricted Subsidiaries, and the Fixed Charge Coverage Ratio of such
Foreign Restricted Subsidiary and its Restricted Subsidiaries (calculated in accordance
with the definition thereof as if each reference to the Company was a reference to such
subsidiary and each reference to the Company’s Restricted Subsidiaries is a reference to
such subsidiary’s Subsidiaries that are Restricted Subsidiaries), is not less than 2.0 to
1, in the case of the Company and its Restricted Subsidiaries, and 2.5 to 1, in the case
of the Foreign Restricted Subsidiary and its Restricted Subsidiaries and (ii) the
aggregate principal amount of Debt of the Company’s Foreign Restricted Subsidiaries at the
time outstanding does not exceed 50% of the Total Assets of the Company’s Foreign
Restricted Subsidiaries as of the date of Incurrence and (b) any Guarantee of such Debt
(i) constituting a Limited Recourse Parent Guaranty or (ii) by any Foreign Restricted
Subsidiary that is a Subsidiary of the Person Incurring such Debt under this clause (xi);




44













 






     (xii) Debt of the Company or any Restricted Subsidiary consisting of the deferred
purchase price for power pursuant to any provision in a power contract that permits
payment of a portion thereof to be deferred;




     (xiii) Debt of any Foreign Restricted Subsidiaries incurred to finance expansion or
improvement of the Grundartangi plant, together with any Permitted Refinancing Debt in
connection therewith, not to exceed $125 million in the aggregate; provided that such Debt
may only be incurred if such Debt is not guaranteed by, and non-recourse to, the Company
or any Guarantor;




     (xiv) Unsecured Indebtedness; provided that the aggregate principal amount of all
Debt Incurred under this clause (xiv), together with any Permitted Refinancing Debt in
connection therewith, at any time outstanding shall not exceed $500.0 million; and




     (xv) other Debt of the Company or any Restricted Subsidiary in an aggregate principal
amount for all Debt under this clause (xv) at any time outstanding not to exceed $25.0
million.



     (c) For purposes of determining compliance with  Section 4.06, in the event that an item of
Debt or any portion thereof meets the criteria of more than one of the categories of Permitted Debt
described in clauses (b)(i) through (xv) above, or is entitled to be incurred pursuant to clause
(a), the Company shall, in its sole discretion, classify such item of Debt or any portion thereof
in any manner that complies with this covenant and such item of debt or portion thereof will be
treated as having been incurred pursuant to only the clause or clauses designated by the Company.



     (d) Notwithstanding anything to the contrary in this  Section 4.06, the maximum amount of Debt
that the Company and its Restricted Subsidiaries may Incur pursuant to this  Section 4.06 shall not
be deemed to be exceeded, with respect to any outstanding Debt, solely as a result of fluctuations
in the exchange rate of currencies.



     Section 4.07. Limitation on Restricted Payments. (a) The Company will not, and will not
permit any Restricted Subsidiary to, directly or indirectly (the payments and other actions
described in the following clauses being collectively “Restricted Payments”):




     (i) declare or pay any dividend or make any distribution on its Equity Interests
(other than dividends or distributions paid in the Company’s Qualified Stock) held by
Persons other than the Company or any of its Wholly Owned Restricted Subsidiaries;



45









 





     (ii) purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company or any Restricted Subsidiary held by Persons other than the Company or any
of its Wholly Owned Restricted Subsidiaries;




     (iii) repay, redeem, repurchase, defease or otherwise acquire or retire for value, or
make any payment on or with respect to, any Subordinated Debt except a payment of interest
or principal at Stated Maturity; or




     (iv) make any Investment other than a Permitted Investment;


unless, at the time of, and after giving effect to, the proposed Restricted Payment:





     (1) no Default has occurred and is continuing,




     (2) the Company could Incur at least $1.00 of Debt under  Section 4.06(a), and




     (3) the aggregate amount expended for all Restricted Payments made on or after the
7.5% Notes Issue Date would not, subject to paragraph (c), exceed the sum of




     (A) 50% of the aggregate amount of the Consolidated Net Income (or, if the
Consolidated Net Income is a loss, minus 100% of the amount of the loss) accrued
on a cumulative basis during the period, taken as one accounting period,
beginning on April 1, 2004 and ending on the last day of the Company’s most
recently completed fiscal quarter for which financial statements have been
provided (or if not timely provided, required to be provided) pursuant to
 Section 4.17 (whether through filing of a Form 10-Q or a Form 10-K for such
period or an earnings release filed on Form 8-K), plus




     (B) subject to paragraph (c), the aggregate net cash proceeds received by
the Company (other than from a Subsidiary) after the 7.5% Notes Issue Date from
the issuance and sale of its Qualified Equity Interests, including by way of
issuance of its Disqualified Equity Interests or Debt to the extent since
converted into Qualified Equity Interests of the Company, plus




     (C) an amount equal to the sum, for all Unrestricted Subsidiaries, of the
following:




     (x) the cash return, after the 7.5% Notes Issue Date, on
Investments in an Unrestricted Subsidiary made after the 7.5% Notes
Issue Date pursuant to this paragraph



46









 






(a) as a result of any sale for cash, repayment, redemption,
liquidating distribution or other cash realization (not included in
Consolidated Net Income), plus




     (y) the portion (proportionate to the Company’s equity interest in
such Subsidiary) of the fair market value of the assets less liabilities
of an Unrestricted Subsidiary (as determined in good faith by the Board
of Directors) at the time such Unrestricted Subsidiary is designated a
Restricted Subsidiary,




not to exceed, in the case of any Unrestricted Subsidiary, the amount of
Investments made after the 7.5% Notes Issue Date by the Company and its
Restricted Subsidiaries in such Unrestricted Subsidiary pursuant to this
paragraph (a), plus




     (D) the cash return, after the 7.5% Notes Issue Date, on any other
Investment made after the 7.5% Notes Issue Date pursuant to this paragraph (a),
as a result of any sale for cash, repayment, redemption, liquidating
distribution or other cash realization (not included in Consolidated Net
Income), not to exceed the amount of such Investment so made.



     The amount of any non-cash Restricted Payment will be deemed to be the fair market value
thereof, as determined in good faith by the Board of Directors, whose determination will be
conclusive and evidenced by a Board Resolution.



     (b) The foregoing will not prohibit:




     (i) the payment of any dividend within 60 days after the date of declaration thereof
if, at the date of declaration, such payment would comply with paragraph (a);




     (ii) dividends or distributions by a Restricted Subsidiary payable, on a pro rata
basis or on a basis more favorable to the Company (or the relevant Restricted Subsidiary
holding the Capital Stock of such Restricted Subsidiary, as applicable), to all holders of
any class of Capital Stock of such Restricted Subsidiary a majority of which is held,
directly or indirectly through Restricted Subsidiaries, by the Company;




     (iii) the repayment, redemption, repurchase, defeasance or other acquisition or
retirement for value of Subordinated Debt with the proceeds of, or in exchange for,
Permitted Refinancing Debt;




     (iv) the purchase, redemption or other acquisition or retirement for value of Equity
Interests of the Company in exchange for, or out of the



47









 






proceeds of a substantially concurrent offering of, Qualified Equity Interests of the
Company;




     (v) the repayment, redemption, repurchase, defeasance or other acquisition or
retirement of Subordinated Debt of the Company in exchange for, or out of the proceeds of,
a substantially concurrent offering of, Qualified Equity Interests of the Company;




     (vi) the purchase, redemption or other acquisition or retirement for value of Equity
Interests of the Company held by officers, directors or employees or former officers,
directors or employees (or their estates or beneficiaries), (a) upon death, disability,
retirement, severance or termination of employment, or pursuant to any agreement under
which the Equity Interests were issued; provided that the aggregate cash consideration
paid therefor after the 7.5% Notes Issue Date does not exceed an aggregate amount of $8.0
million; or (b) which Equity Interests consist of performance shares or options (or shares
issued upon the vesting of performance shares or the exercise of options) that are
repurchased or withheld upon vesting of such performance shares or exercise of such
options solely in order to satisfy tax withholding obligations of such persons as a result
thereof;




     (vii) (A) Investments in any Joint Venture or Unrestricted Subsidiary organized to
construct, acquire, own and/or operate a facility in a Permitted Business (including,
without limitation, any Guarantees), in an aggregate amount made on or after the 7.5 %
Notes Issue Date that, together with all other Investments made pursuant to this clause
(vii)(A), does not exceed $35.0 million and (B) any Limited Recourse Guarantee by any
Joint Venture Holding Company holding such Investment to secure Non-Recourse Debt of such
Joint Venture or Unrestricted Subsidiary;




     (viii) any other Restricted Payment which, together with all other Restricted
Payments made pursuant to this clause  (viii) on or after the 7.5 % Notes Issue Date, does
not exceed $20.0 million;




     (ix) the payment by the Company or any Restricted Subsidiary of (a) any purchase
price adjustments in connection with the acquisition of the Hawesville Facility and (b)
any post-closing purchase price adjustments in connection with the acquisition of
Grundartangi, in each case pursuant to the provisions of the relevant purchase agreement
as in effect on the 7.5 % Notes Issue Date;




     (x) any payment by the Company to any holder of the Company’s Convertible Notes and
7.5% Notes in connection with the conversion, repurchase or redemption thereof, which
payment is permitted or required by the terms of such notes as in effect on the Issue Date
and any open market purchases or tender offers in respect of such notes; and



48









 






     (xi) Investments in any Joint Venture or Unrestricted Subsidiary organized to
construct, acquire, own and/or operate a facility in a Permitted Business (including
without limitation any Guarantees) with the proceeds of any Debt Incurred pursuant to
clause (b)(xiv) under Section 4.06;


provided that, in the case of clauses (vi), (vii) and (viii) no Default has occurred and is
continuing or would occur as a result thereof.




     (c) Proceeds of the issuance of Qualified Equity Interests will be included under clause (3)
of paragraph (a) only to the extent they are not applied as described in clause (iv) or (v) of
paragraph (b). Restricted Payments permitted pursuant to clauses (ii) (to the extent paid to the
Company or any Restricted Subsidiary of the Company), (iii), (iv), (v), (vi), (vii), (viii), (ix)
or (x) of paragraph (b) will not be included in making the calculations under clause (3) of
paragraph (a).



     Section 4.08. Limitation on Liens. The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, incur or permit to exist any Lien of any nature whatsoever
on any of its properties or assets, whether owned at the Issue Date or thereafter acquired, other
than Permitted Liens, provided, however, that the foregoing will not apply with respect to Excluded
Property to the extent the Company or any Restricted Subsidiary effectively provides that the Notes
and Note Guarantees shall be secured equally and ratably with (or, if the obligation to be secured
by the Lien is subordinated in right of payment to the Notes or any Note Guaranty, prior to) the
obligations so secured for so long as such obligations are so secured.



     Section 4.09. Limitation on Dividend and Other Payment Restrictions Affecting Restricted
Subsidiaries. (a) Except as provided in paragraph (b), the Company will not, and will not permit
any Restricted Subsidiary to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to




     (i) pay dividends or make any other distributions on any Equity Interests of the
Restricted Subsidiary owned by the Company or any other Restricted Subsidiary,




     (ii) pay any Debt or other obligation owed to the Company or any other Restricted
Subsidiary,




     (iii) make loans or advances to the Company or any other Restricted Subsidiary, or




     (iv) transfer any of its property or assets to the Company or any other Restricted
Subsidiary.



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     (b) The provisions of paragraph (a) do not apply to any encumbrances or restrictions




     (i) existing on the Issue Date in the Credit Agreement, this Indenture or any other
agreements in effect on the Issue Date, and any extensions, renewals, replacements or
refinancings of any of the foregoing or of any subsequent extension, renewal, replacement
or refinancing thereof; provided that the encumbrances and restrictions in the extension,
renewal, replacement or refinancing are, taken as a whole, no more adverse in any material
respect to the Noteholders than the encumbrances or restrictions being extended, renewed,
replaced or refinanced;




     (ii) existing under or by reason of applicable law;




     (iii) existing




     (A) with respect to any Person, or with respect to any property or assets,
at the time the Person or property or assets are acquired by the Company or any
Restricted Subsidiary, or




     (B) with respect to any Unrestricted Subsidiary at the time it is
designated or is deemed to become a Restricted Subsidiary,




which encumbrances or restrictions (x) are not applicable to any other Person or the
property or assets of any other Person and (y) were not put in place in anticipation of
such event; and any extensions, renewals, replacements or refinancings of any of the
foregoing, or of any subsequent extension, renewal, replacement or refinancing thereof,
provided the encumbrances and restrictions in the extension, renewal, replacement or
refinancing are, taken as a whole, no more adverse in any material respect to the
Noteholders than the encumbrances or restrictions being extended, renewed, replaced or
refinanced;




     (iv) of the type described in clause (a)(iv) arising or agreed to




     (A) in the ordinary course of business that restrict in a customary manner
the subletting, assignment or transfer of any property or asset that is subject
to a lease or license,




     (B) with respect to any assets comprising a Permitted Business in which the
Company or any Restricted Subsidiary has ownership of an undivided interest,
pursuant to the agreements under which such interest is owned or maintained,
including, without limitation, options, put and call arrangements, rights of
first refusal and similar rights, provided that such restrictions are consistent
with the Company’s past practice, or



50









 






     (C) by virtue of any Permitted Lien on, or agreement to transfer, option or
similar right with respect to, any property or assets of, the Company or any
Restricted Subsidiary;




     (v) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that
has been entered into for the sale or disposition of all or substantially all of the
Capital Stock of or property and assets of the Restricted Subsidiary that is permitted by
this Indenture;




     (vi) on the ability of Restricted Subsidiaries to consummate transactions of the type
described in paragraph (a)(i), (ii), (iii) or (iv) provided for by any credit agreement or
security document relating to Debt permitted to be incurred under this Indenture; provided
that such restrictions are not more restrictive than the restrictions contained in this
Indenture or the Credit Agreement;




     (vii) required pursuant to  Section 4.06(b)(ii);




     (viii) imposed on any Joint Venture pursuant to customary limitations contained in
the constituent documents and agreements governing such Joint Venture; or




     (ix) existing under any credit agreement or security document relating to Debt
incurred pursuant to clause (b)(x) or (b)(xi) under  Section 4.06 or Permitted Refinancing
Debt in respect thereof; provided that (a) such restrictions apply only to the Persons
Incurring such Debt (including Guarantees thereof) and their Subsidiaries and (b) such
Debt is not Guaranteed by the Company.



     Section 4.10. Limitation on Sale or Issuance of Equity Interests of Restricted Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly,
sell or issue any Equity Interests of a Restricted Subsidiary unless




     (a) the sale or issuance is to the Company or a Wholly Owned Restricted Subsidiary,




     (b) the sale or issuance is of Capital Stock representing directors’ qualifying shares or Capital Stock required by applicable law to be held by a Person other than the
Company or a Restricted Subsidiary,




     (c) (i) if, after giving pro forma effect to the sale or issuance, the Restricted
Subsidiary upon such sale or issuance would no longer be a Restricted Subsidiary and all
remaining Investments, if any, of the Company and the Restricted Subsidiaries in such
Person are permitted under  Section 4.07 and (ii) the Company complies with  Section 4.13
with respect to the sale or issuance, to the extent applicable;



51









 






     (d) (i) such sale or issuance is a sale or issuance of Common Stock of a Restricted
Subsidiary that is a Guarantor and remains a Restricted Subsidiary that is a Guarantor
after giving effect to the sale, and (ii) the Company complies with  Section 4.13 with
respect to the sale or issuance, to the extent applicable; or




     (e) such sale or issuance is a sale or issuance of Disqualified Stock permitted under
 Section 4.06.



     Section 4.11. Guarantees by Restricted Subsidiaries. If the Company or any of its
Restricted Subsidiaries acquires or creates a Domestic Restricted Subsidiary (other than any
Foreign-Owned Parent Holding Company) after the Issue Date, the new Domestic Restricted Subsidiary
must provide a Note Guaranty and become a party to the Collateral Agreements (and pledge its assets
to the extent they would constitute Collateral) until such Guaranty is released pursuant to Section
10.09.



     A Restricted Subsidiary required to provide a Note Guaranty shall execute a supplemental
indenture substantially in the form of Exhibit B, and deliver an Opinion of Counsel to the Trustee
to the effect that the supplemental indenture has been duly authorized, executed and delivered by
the Restricted Subsidiary and constitutes a valid and binding obligation of the Restricted
Subsidiary, enforceable against the Restricted Subsidiary in accordance with its terms (subject to
customary exceptions).



     Section 4.12. Repurchase of Notes upon a Change of Control. Not later than 30 days
following a Change of Control, the Company will make an Offer to Purchase all outstanding Notes at
a purchase price equal to 101% of the principal amount plus accrued interest to the date of
purchase.



     Section 4.13. Limitation on Asset Sales. The Company will not, and will not permit any
Restricted Subsidiary to, make any Asset Sale unless the following conditions are met:



     (a) The Asset Sale is for fair market value, as determined in good faith by the Board of
Directors.



     (b) At least 75% of the consideration consists of cash received at closing; provided, however,
to the extent that any disposition in such Asset Sale was of Collateral, the non-cash consideration
received is pledged as Collateral under the Collateral Agreements substantially simultaneously with
such sale, in accordance with the requirements set forth in this Indenture.



     For purposes of this clause  (b):



52









 






     (i) Debt (other than Subordinated Debt) or other obligations of the Company or a
Restricted Subsidiary assumed by the purchaser pursuant to a customary novation agreement,
and




     (ii) instruments or securities received from the purchaser that are promptly, but in
any event within 30 days of the closing, converted by the Company to cash, to the extent
of the cash actually so received




shall be considered cash received at closing.



     (c) An amount equal to the Net Cash Proceeds from the Asset Sale may be used




     (i) to permanently repay (i) any First Lien Indebtedness or (ii) unless the Net Cash
Proceeds are from a disposition of Collateral, Debt under the Credit Agreement, or (iii)
unless the Net Cash Proceeds are from a disposition of Collateral, Debt of any Restricted
Subsidiary that is not a Guarantor (and, in each case, in the case of a revolving credit,
permanently reduce the commitment thereunder by such amount), or




     (ii) to acquire all or substantially all of the assets of a Permitted Business, or a
majority of the Voting Stock of another Person that thereupon becomes a Restricted
Subsidiary engaged in a Permitted Business, or to make capital expenditures or otherwise
acquire long-term assets (including an undivided interest therein) that are to be used in
a Permitted Business; provided that the assets (including Voting Stock) acquired with the
Net Cash Proceeds of a disposition of Collateral are pledged as Collateral under the
Collateral Agreements substantially simultaneously with such acquisition in accordance
with the requirements of this Indenture.



     (d) The Net Cash Proceeds of an Asset Sale not applied pursuant to clause (c) within 360 days
of the Asset Sale constitute “Excess Proceeds”. Excess Proceeds of less than $10.0 million will be
carried forward and accumulated. When accumulated Excess Proceeds equal or exceed $10.0 million,
the Company must, within 30 days, make an Offer to Purchase Notes having a principal amount equal
to




     (i) accumulated Excess Proceeds, multiplied by




     (ii) a fraction (x) the numerator of which is equal to the outstanding principal
amount of the Notes and (y) the denominator of which is equal to the outstanding principal
amount of the Notes and all Debt that is secured by a parity Lien on the Collateral and
similarly required to be repaid, redeemed or tendered for in connection with the Asset
Sale,



53









 




rounded down to the nearest $1,000. The purchase price for the Notes will be 100% of the principal
amount plus accrued interest to the date of purchase. Upon completion of the Offer to Purchase,
Excess Proceeds will be reset at zero, and any Excess Proceeds remaining after consummation of the
Offer to Purchase may be used for any purpose not otherwise prohibited by this Indenture.




     (e) To the extent that any Net Cash Proceeds are from a disposition of Collateral the fair
market value of which exceeds $10 million in the aggregate, such Net Cash Proceeds will be
deposited with the Noteholder Collateral Agent or the Trustee, as the case may be, and held as
Collateral pending application pursuant to clause (c) or (d) above, and, in the case of clause (d),
released to the Company or the relevant Guarantor if remaining after consummation of the Offer to
Purchase.



     Section 4.14. Limitation on Transactions with Shareholders and Affiliates. (a) The Company
will not, and will not permit any Restricted Subsidiary to, directly or indirectly, enter into,
renew or extend any transaction or arrangement (including, without limitation, the purchase, sale,
lease or exchange of property or assets, or the rendering of any service) with (x) any holder, or
any Affiliate of any holder, of 5% or more of any class of Capital Stock of the Company or (y) any
Affiliate of the Company or any Restricted Subsidiary (a “Related Party Transaction”), except upon
fair and reasonable terms no less favorable to the Company or the Restricted Subsidiary than could
be obtained in a comparable arm’s-length transaction with a Person that is not an Affiliate of the
Company.



     (b) Any Related Party Transaction or series of Related Party Transactions with an aggregate
value in excess of $5.0 million must first be approved by a majority of the members of the Board of
Directors who are disinterested in the subject matter of the transaction (the “Disinterested
Directors”) pursuant to a Board Resolution delivered to the Trustee. Prior to entering into any
Related Party Transaction or series of Related Party Transactions with an aggregate value in excess
of $25.0 million, the Company must in addition obtain and deliver to the Trustee a favorable
written opinion from an investment banking, valuation or appraisal firm as to the fairness of the
consideration to be received or paid by the Company and its Restricted Subsidiaries from a
financial point of view. In the event of any Related Party Transaction that consists of any asset
acquisition or disposition and a related purchase or supply agreement, the transaction shall be
considered as a whole in determining its compliance with this covenant.



     The foregoing paragraphs do not apply to




     (i) any transaction between the Company and any of its Restricted Subsidiaries or
between Restricted Subsidiaries of the Company;



54









 






     (ii) the payment of reasonable and customary regular fees to directors of the Company
who are not employees of the Company;




     (iii) any Restricted Payments of a type described in  Section 4.07(a)(i) and (ii) if
permitted by that covenant;




     (iv) transactions or payments pursuant to any employee, officer or director
compensation or benefit plans or arrangements entered into in the ordinary course of
business;




     (v) the entering into of Hedging Agreements or similar arrangements with Glencore or
any of its Affiliates, or any amendment, modification, replacement, settlement or
termination thereof, on a basis consistent with past practice and upon fair and reasonable
terms no less favorable in any material respect to the Company or the Restricted
Subsidiary than could reasonably be expected to be obtained in a comparable arms’-length
transaction;




     (vi) agreements or arrangements with Glencore or any of its Affiliates relating to
the procurement or sale of raw materials or aluminum products or the tolling of alumina;
provided that such transactions are upon fair and reasonable terms no less favorable in
any material respect to the Company or the Restricted Subsidiary than could reasonably be
expected to be obtained in a comparable arms’-length transaction;




     (vii) (A) the issuance and sale of Qualified Equity Interests of the Company and (B)
the sale to any Affiliate of the Company of any securities of the Company offered and sold
in a broadly distributed underwritten offering (whether registered or pursuant to Rule
144A or Regulation S); provided that such sale is at a price to the Company no lower than
the price paid to the Company with respect to other securities sold in such offering;




     (viii) [Reserved]




     (ix) transactions between the Company or any Restricted Subsidiary and any Joint
Venture or Unrestricted Subsidiary of the Company entered into in the ordinary course of
business; provided that such transactions are upon fair and reasonable terms not
materially less favorable to the Company or the Restricted Subsidiary than could be
obtained in a comparable arms’-length transaction and are approved by the Board of
Directors; and




     (x) transactions pursuant to any contract or agreement in effect on the Issue Date,
in each case as amended, modified or replaced, from time to time, including any subsequent
replacements, so long as the amended, modified or new agreement, taken as a whole, is not
materially



55









 






less favorable to the Company and its Restricted Subsidiaries than those in effect on
the Issue Date.



     Section 4.15. Line of Business. The Company will not, and will not permit any of its
Restricted Subsidiaries, to engage in any business other than a Permitted Business (including
indirectly, through its interest in a Joint Venture that is not a Restricted Subsidiary), except to
an extent that so doing would not be material to the Company and its Restricted Subsidiaries, taken
as a whole.



     Section 4.16. Designation of Restricted and Unrestricted Subsidiaries. (a) The Board of
Directors may designate any Subsidiary, including a newly acquired or created Subsidiary, to be an
Unrestricted Subsidiary if it meets the following qualifications and the designation would not
cause a Default.




     (i) Such Subsidiary does not own any Capital Stock of the Company or any Restricted
Subsidiary or hold any Debt of, or any Lien on any property of, the Company or any
Restricted Subsidiary.




     (ii) At the time of designation, the designation would be permitted under  Section
4.07.




     (iii) To the extent the Debt of the Subsidiary is not Non-Recourse Debt, any
Guarantee or other credit support thereof by the Company or any Restricted Subsidiary is
permitted under  Section 4.06 and  Section 4.07.




     (iv) The Subsidiary is not party to any transaction or arrangement with the Company
or any Restricted Subsidiary that would not be permitted under  Section 4.14.




     (v) Neither the Company nor any Restricted Subsidiary has any obligation to subscribe
for additional Equity Interests of the Subsidiary or to maintain or preserve its financial
condition or cause it to achieve specified levels of operating results except to the
extent permitted by  Section 4.06 and  Section 4.07.


Once so designated the Subsidiary will remain an Unrestricted Subsidiary, subject to paragraph (b).




     (b) (i) A Subsidiary previously designated an Unrestricted Subsidiary which at any time fails
to meet the qualifications set forth in paragraph (a) will be deemed to become at that time a
Restricted Subsidiary, subject to the consequences set forth in paragraph (d).




     (ii) The Board of Directors may designate an Unrestricted Subsidiary to be a
Restricted Subsidiary if the designation would not cause a Default.



56









 





     (c) Upon a Restricted Subsidiary becoming an Unrestricted Subsidiary,




     (i) all existing Investments of the Company and the Restricted Subsidiaries therein
will be deemed made at that time;




     (ii) all existing transactions between it and the Company or any Restricted
Subsidiary will be deemed entered into at that time;




     (iii) it will be released at that time from its Note Guaranty, if any, and Liens on
its assets will be released; and




     (iv) it will cease to be subject to the provisions of this Indenture as a Restricted
Subsidiary.



     (d) Upon an Unrestricted Subsidiary becoming, or being deemed to become, a Restricted
Subsidiary,




     (i) all of its Debt and Disqualified or Preferred Stock will be deemed Incurred at
that time for purposes of  Section 4.06 but will not be considered the sale or issuance of
Equity Interests for purposes of  Section 4.10 or  Section 4.13;




     (ii) Investments therein previously charged under  Section 4.07 will be credited
thereunder;




     (iii) it may be required to issue a Note Guaranty of the Notes pursuant to  Section
4.11 and pledge its assets to the extent that they would constitute Collateral; and




     (iv) it will thenceforward be subject to the provisions of this Indenture as a
Restricted Subsidiary.



     (e) Any designation by the Board of Directors of a Subsidiary as a Restricted Subsidiary or
Unrestricted Subsidiary will be evidenced to the Trustee by promptly filing with the Trustee a copy
of the Board Resolution giving effect to the designation and an Officer’s Certificate certifying
that the designation complied with the foregoing provisions.



     Section 4.17. Financial Reports. (a) Whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, the Company must provide the Trustee and
Noteholders within the time periods specified in those sections with




     (i) all quarterly and annual financial information that would be required to be
contained in a filing with the Commission on Forms 10-Q and 10-K if the Company were
required to file such forms, including a “Management’s Discussion and Analysis of
Financial Condition and



57









 






Results of Operations” and, with respect to annual information only, a report thereon
by the Company’s certified independent accountants, and




     (ii) all current reports that would be required to be filed with the Commission on
Form 8-K if the Company were required to file such reports.



     In addition, whether or not required by the Commission, the Company will, if the Commission
will accept the filing, file a copy of all of the information and reports referred to in clauses
(i) and (ii) with the Commission for public availability within the time periods specified in the
Commission’s rules and regulations. In addition, the Company will make the information and reports
available to securities analysts and prospective investors upon request.



     (b) All obligors on the Notes will comply with §314(a) of the Trust Indenture Act.



     (c) Delivery of these reports and information to the Trustee is for informational purposes
only and the Trustee’s receipt of them will not constitute constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers’ Certificates).



     Section 4.18. Reports to Trustee. (a) The Company and each Guarantor will deliver to the
Trustee within 120 days after the end of each fiscal year of the Company a certificate, executed by
officers of the Company and each Guarantor, stating that the Company and each Guarantor has
fulfilled its obligations hereunder or, if there has been a Default, specifying the Default and its
nature and status.



     (b) The Company will deliver to the Trustee, as soon as possible and in any event within 30
days after the Company becomes aware or should reasonably become aware of the occurrence of a
Default, an Officers’ Certificate setting forth the details of the Default, and the action which
the Company proposes to take with respect thereto.



     (c) The Company will deliver to the Trustee within 120 days after the end of each fiscal year
of the Company a written statement by the Company’s independent public accountants stating (i) that
their audit examination has included a review of the terms of this Indenture and the Notes as they
relate to accounting matters, and (ii) whether, in connection with their audit examination, any
Default has come to their attention and, if a Default has come to their attention, specifying the
nature and period of the existence thereof.



     (d) The Company will deliver to the Trustee within 120 days after the end of each fiscal year
a written Opinion of Counsel as to the continued perfection



58









 




of the Liens of the Collateral Agreements on the Collateral, to the extent required by
§314(b)(2) of the Trust Indenture Act.




     (e) The Company will notify the Trustee in writing when any Notes become listed on any
national securities exchange and of any delisting.



     Section 4.19. Collateral Requirements; Further Assurances; Costs.



     (a) On the Issue Date, the Company and each Guarantor shall grant Liens in favor of the
Noteholder Collateral Agent for the benefit of the holders of Second-Priority Lien Obligations on
the Collateral owned by the Company or any Guarantor on the Issue Date and take all appropriate
steps to cause such Liens to be valid and perfected Liens, subject only to Permitted Liens and
exceptions and encumbrances described in the Collateral Agreements, to the extent required by this
Indenture and the Collateral Agreements, provided, however, that any mortgages, deeds of trust or
similar instruments required to be granted pursuant to this Indenture or the Collateral Agreements
with respect to real property owned by the Company or any Guarantor on the Issue Date shall be
granted, as soon as commercially reasonable following the Issue Date, but in no event later than 75
days following the Issue Date. For the avoidance of doubt, no Title Insurance Policies shall be
delivered with respect to the Mortgages granted pursuant to this Section 4.19(a).



     (b) If property of a type constituting Collateral is acquired by the Company or a Guarantor
that is not automatically subject to a perfected security interest under the Collateral Agreements
or a Restricted Subsidiary becomes a Guarantor, then the Company and such Guarantor, as applicable,
will, as soon as practical after such property’s acquisition or such Subsidiary becoming a
Guarantor:




     (i) grant Liens on such property (or, in the case of a new Guarantor, all of its
assets constituting the type that is Collateral) in favor of the Noteholder Collateral
Agent for the benefit of the holders of Second-Priority Lien Obligations (and, to the
extent such grant would require the execution and delivery of a Collateral Agreement, the
Company or such Guarantor shall execute and deliver such Collateral Agreement on
substantially the same terms as the Collateral Agreements covering Collateral owned by the
Company or a Guarantor on the Issue Date including, with respect to personal property,
execution of a supplement to the Security Agreement and, with respect to real property,
execution of a new Mortgage or an amendment to an existing Mortgage);




     (ii) deliver certain certificates in respect thereof as required by the Collateral
Agreements and, in the case of real property, a Title Insurance Policy; and




59











 






     (iii) cause the Lien granted in such Collateral Agreement to be duly perfected to the
same extent as the Liens granted on Collateral owned by the Company or a Guarantor on the
Issue Date are perfected (including, with respect to Equity Interests of a Subsidiary or
intercompany debt, perfection by control to the extent required by the Security
Agreement).



     The Company or such Guarantor shall deliver an Opinion of Counsel to the Trustee to the extent
required by §314(b) of the TIA in respect of any Lien grant referred to in this clause (b).



     (c) The Company will bear and pay all legal expenses, collateral audit and valuation costs,
filing and recording fees, insurance premiums and other costs associated with the performance of
the obligations of the Company and the Guarantors set forth in this Section 4.19 and will also pay
or reimburse the Trustee and Noteholder Collateral Agent for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by the Trustee and Noteholder Collateral Agent in
connection therewith, including the reasonable compensation and expenses of the Trustee and
Noteholder Collateral Agent’s agents and counsel.



     (d) Neither the Company nor any of the Guarantors will be permitted to take any action, or
knowingly or negligently omit to take any action, which action or omission might or would have the
result of materially impairing the security interest with respect to the Collateral for the benefit
of the Trustee and the Holders of the Notes.



ARTICLE 5

Consolidation, Merger or Sale of Assets




     Section 5.01.
Consolidation, Merger or Sale of Assets by the Company; No Lease of All or
Substantially All Assets.



     (a) The Company will not:




     (i) consolidate with or merge with or into any Person, or




     (ii) sell, convey, transfer, or otherwise dispose of all or substantially all of the
assets of the Company and its consolidated Subsidiaries, as an entirety or substantially
as an entirety, in one transaction or a series of related transactions, to any Person, or




     (iii) permit any Person to merge with or into the Company unless




     (A) either (x) the Company is the continuing Person or (y) the resulting,
surviving or transferee Person is a corporation organized and validly existing
under the laws of the United States



60









 







of America or any jurisdiction thereof and expressly assumes by
supplemental indenture all of the obligations of the Company under this
Indenture, the Notes and the Collateral Agreements;




     (B) immediately after giving effect to the transaction, no Default has
occurred and is continuing;




     (C) immediately after giving effect to the transaction on a pro forma
basis, the Company or the resulting, surviving or transferee Person has a
Consolidated Net Worth (without taking into account any purchase accounting
adjustments) equal to or greater than the Consolidated Net Worth of the Company
immediately prior to the transaction;




     (D) immediately after giving effect to the transaction on a pro forma
basis, the Company or the resulting, surviving or transferee Person could Incur
at least $1.00 of Debt under Section 4.06(a); and




     (E) the Company delivers to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that the consolidation, merger or transfer and
the supplemental indenture (if any) comply with this Indenture;


provided that clauses (B) through (D) do not apply (i) to the consolidation or merger of the
Company with or into a Wholly Owned Restricted Subsidiary or the consolidation or merger of a
Wholly Owed Restricted Subsidiary with or into the Company or (ii) if, in the good faith
determination of the Board of Directors of the Company, whose determination is evidenced by a Board
Resolution, the sole purpose of the transaction is to change the jurisdiction of incorporation of
the Company.




     (b) The Company shall not lease all or substantially all of the assets of the Company and its
consolidated Subsidiaries, whether in one transaction or a series of transactions, to one or more
other Persons.



     (c) Upon the consummation of any transaction effected in accordance with these provisions, if
the Company is not the continuing Person, the resulting, surviving or transferee Person will
succeed to, and be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named as the Company in
this Indenture. Upon such substitution, unless the successor is one or more of the Company’s
Subsidiaries, the Company will be released from its obligations under this Indenture and the Notes.



     Section 5.02. Consolidation, Merger or Sale of Assets by a Guarantor.



61









 





     (a) No Guarantor may:




     (i) consolidate with or merge with or into any Person, or




     (ii) sell, convey, transfer or dispose of, all or substantially all its assets as an
entirety or substantially as an entirety, in one transaction or a series of related
transactions, to any Person, or




     (iii)
permit any Person to merge with or into the Guarantor unless




     (A) the other Person is the Company or any Wholly Owned Restricted
Subsidiary that is a Guarantor or becomes a Guarantor concurrently with the
transaction; or




     (B) (1) either (x) the Guarantor is the continuing Person or (y) the
resulting, surviving or transferee Person expressly assumes by supplemental
indenture all of the obligations of the Guarantor under this Indenture, its Note
Guaranty and the Collateral Agreements; and




     (2) immediately after giving effect to the transaction, no Default
has occurred and is continuing; or




     (C) the transaction constitutes a sale or other disposition (including by
way of consolidation or merger) of the Guarantor or the sale or disposition of
all or substantially all the assets of the Guarantor (in each case other than to
the Company or a Restricted Subsidiary) otherwise permitted by this Indenture.



     (b) In connection with, and as a condition to, any transaction subject to Section 5.02, the
Company shall deliver to the Trustee an Officers’ Certificate and an Opinion of Counsel, each
stating that the consolidation, merger or transfer and the supplemental indenture (if any) comply
with this Indenture.



ARTICLE 6

Default and Remedies




     Section 6.01. Events of Default. An “Event of Default” occurs if




     (a) the Company defaults in the payment of the principal of any Note when the same
becomes due and payable at maturity, upon acceleration or redemption, or otherwise;



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     (b) the Company defaults in the payment of interest on any Note when the same becomes
due and payable, and the default continues for a period of 30 days;




     (c) the Company fails to make an Offer to Purchase and thereafter accept and pay for
Notes tendered when and as required pursuant to Section 4.12 or Section 4.13, or the
Company or any Guarantor fails to comply with Article 5;




     (d) the Company defaults in the performance of or breaches any other covenant or
agreement of the Company in this Indenture or under the Notes and the default or breach
continues for a period of 60 consecutive days after written notice to the Company by the
Trustee or to the Company and the Trustee by the Holders of 25% or more in aggregate
principal amount of the Notes;




     (e) there occurs with respect to any Debt of the Company or any of its Restricted
Subsidiaries having an outstanding principal amount of $10.0 million or more in the
aggregate for all such Debt of all such Persons (i) an event of default that has caused
the holder thereof to declare such Debt to be due and payable prior to its scheduled
maturity or (ii) failure to make a principal payment when due and such defaulted payment
is not made, waived or extended within the applicable grace period;




     (f) one or more final judgments or orders for the payment of money are rendered
against the Company or any of its Restricted Subsidiaries (other than such judgments or
orders rendered against the Company or any of its Restricted Subsidiaries with respect to
claims, actions or judgments arising out of or relating to Legacy Domestic Subsidiaries,
including without limitation claims, actions or judgments arising out of or relating to
the employment of current or former employees of one or more Legacy Domestic Subsidiaries)
and are not paid or discharged, and there is a period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all such final
judgments or orders outstanding and not paid or discharged against all such Persons to
exceed $10.0 million (in excess of amounts which the Company’s insurance carriers have
agreed to pay under applicable policies) during which a stay of enforcement, by reason of
a pending appeal or otherwise, is not in effect (a “judgment default”);




     (g) an involuntary case or other proceeding is commenced against the Company or any
Significant Restricted Subsidiary with respect to it or its debts under any bankruptcy,
insolvency or other similar law now or hereafter in effect seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding remains
undismissed and unstayed for a period of 60 days; or an order for relief is



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entered against the Company or any such Significant Restricted Subsidiary under the
federal bankruptcy laws as now or hereafter in effect;




     (h) the Company or any of its Significant Restricted Subsidiaries (i) commences a
voluntary case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consents to the entry of an order for relief in an involuntary
case under any such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Company or any of its Significant Restricted Subsidiaries or for all or substantially
all of the property and assets of the Company or any of its Significant Restricted
Subsidiaries or (iii) effects any general assignment for the benefit of creditors (an
event of default specified in clause (g) or (h) a “bankruptcy default”);




     (i) any Note Guaranty of any Significant Restricted Subsidiary ceases to be in full
force and effect, other than in accordance with the terms of this Indenture, or any such
Guarantor denies or disaffirms its obligations under its Note Guaranty; or




     (j) the Liens created by the Collateral Agreements shall at any time not constitute a
valid and perfected Lien on any material portion of the Collateral intended to be covered
thereby (to the extent perfection by filing, registration, recordation or possession is
required by this Indenture or the Collateral Agreements), or, except for expiration in
accordance with its terms or amendment, modification, waiver, termination or release in
accordance with the terms of this Indenture, any of the Collateral Agreements shall for
whatever reason be terminated or cease to be in full force and effect, if in either case,
such default continues for 60 days after notice, or the enforceability thereof shall be
contested by the Company or any Guarantor (an event of default specified in this clause a
“collateral default”); provided that such collateral default shall not result in an Event
of Default if it occurs as a result of a bankruptcy default with respect to a Legacy
Domestic Subsidiary.



     Section 6.02. Acceleration. (a) If an Event of Default, other than a bankruptcy default
with respect to the Company, occurs and is continuing under this Indenture, the Trustee or the
Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written
notice to the Company (and to the Trustee if the notice is given by the Holders), may, and the
Trustee at the request of such Holders shall, declare the principal of and accrued interest on the
Notes to be immediately due and payable. Upon a declaration of acceleration, such principal and
interest will become immediately due and payable. If a bankruptcy default occurs with respect to
the Company, the principal of and accrued interest on the Notes then outstanding will become
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.



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     (b) The Holders of a majority in principal amount of the outstanding Notes by written notice
to the Company and to the Trustee may waive all past Defaults and rescind and annul a declaration
of acceleration and its consequences if




     (i) all existing Events of Default, other than the nonpayment of the principal of,
premium, if any, and interest on the Notes that have become due solely by the declaration
of acceleration, have been cured or waived,




     (ii) the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction, and




     (iii) there had been paid to or deposited with the Trustee a sum sufficient to pay
all amounts due to the trustee and to reimburse the Trustee for any and all fees, expenses
and disbursements advanced by the Trustee, its agents and its counsel incurred in
connection with such Default.



     Section 6.03. Other Remedies. If an Event of Default occurs and is continuing, the Trustee
may pursue, in its own name or as trustee of an express trust any available remedy by proceeding at
law or in equity to collect the payment of principal of and interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture, and any recovery of judgment shall be
for the ratable benefit of the Holders of the Notes. The Trustee may maintain a proceeding even if
it does not possess any of the Notes or does not produce any of them in the proceeding.



     Section 6.04. Waiver of Past Defaults. Except as otherwise provided in Sections 6.02,
6.07 and 9.02, the Holders of a majority in principal amount of the outstanding Notes may, by
notice to the Trustee, waive an existing Default and its consequences. Upon such waiver, the
Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been
cured, but no such waiver will extend to any subsequent or other Default or impair any right
consequent thereon.



     Section 6.05. Control by Majority. The Holders of a majority in aggregate principal amount
of the outstanding Notes may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this Indenture, that may
involve the Trustee in personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction,
and may take any other action it deems proper that is not inconsistent with any such direction
received from Holders of Notes.



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     Section 6.06. Limitation on Suits. A Holder may not institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver or
trustee, or for any other remedy under this Indenture or the Notes, unless:




     (a) the Holder has previously given to the Trustee written notice of a continuing
Event of Default;




     (b) Holders of at least 25% in aggregate principal amount of outstanding Notes have
made written request to the Trustee to institute proceedings in respect of the Event of
Default in its own name as Trustee under this Indenture;




     (c) Holders have offered to the Trustee indemnity reasonably satisfactory to the
Trustee against any costs, liabilities or expenses to be incurred in compliance with such
request;




     (d) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (e) during such 60-day period, the Holders of a majority in aggregate principal
amount of the outstanding Notes have not given the Trustee a direction that is
inconsistent with such written request.



     Section 6.07. Rights of Holders to Receive Payment. Notwithstanding anything to the
contrary, the right of a Holder of a Note to receive payment of principal of or interest on its
Note on or after the Stated Maturity thereof, or to bring suit for the enforcement of any such
payment on or after such respective dates, may not be impaired or affected without the consent of
that Holder.



     Section 6.08. Collection Suit by Trustee. If an Event of Default in payment of principal or
interest specified in clause (a) or (b) of Section 6.01 occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust for the whole amount of
principal and accrued interest remaining unpaid, together with interest on overdue principal and,
overdue installments of interest, in each case at the rate specified in the Notes, and such further
amount as is sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any
other amounts due the Trustee hereunder.



     Section 6.09. Trustee May File Proofs of Claim. The Trustee may file proofs of claim and
other papers or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder) and the
Holders



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allowed in any judicial proceedings relating to the Company or any Guarantor or their
respective creditors or property, and is entitled and empowered to collect, receive and distribute
any money, securities or other property payable or deliverable upon conversion or exchange of the
Notes or upon any such claims. Any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee consents to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any
other amounts due the Trustee hereunder. Nothing in this Indenture will be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder, any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any
such proceeding.



     Section 6.10. Priorities. If the Trustee collects any money pursuant to this Article
(including any proceeds from Collateral received pursuant to the terms of the Collateral Agreements
or the Intercreditor Agreement), it shall pay out the money in the following order:




     • FIRST, to amounts owing to the Noteholder Collateral Agent in its capacity as such
in accordance with the terms of the Collateral Agreements, to the Trustee and to the
representatives of any other holders of debt, in their capacity as such, secured by parity
Liens on the Collateral;




     • SECOND, ratably to amounts owing to the Holders of the Notes in accordance with the
terms of this Indenture and to amounts owing to the holders of any obligations secured by
parity Liens on the Collateral; and




     • THIRD, to the Company and/or other persons entitled thereto.



     The Trustee, upon written notice to the Company, may fix a record date and payment date for
any payment to Holders pursuant to this Section.



     Section 6.11. Restoration of Rights and Remedies. If the Trustee or any Holder has
instituted a proceeding to enforce any right or remedy under this Indenture and the proceeding has
been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or
to the Holder, then, subject to any determination in the proceeding, the Company, any Guarantors,
the Trustee and the Holders will be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Company, any Guarantors, the Trustee and
the Holders will continue as though no such proceeding had been instituted.



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     Section 6.12. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an
undertaking to pay the costs of the suit in the manner and to the extent provided in the Trust
Indenture Act, and the court may assess reasonable costs, including reasonable attorneys fees,
against any party litigant (other than the Trustee) in the suit having due regard to the merits and
good faith of the claims or defenses made by the party litigant. This Section does not apply to a
suit by a Holder to enforce payment of principal of or interest on any Note on the respective due
dates, or a suit by Holders of more than 10% in principal amount of the outstanding Notes.



     Section 6.13. Rights and Remedies Cumulative. No right or remedy conferred or reserved to
the Trustee or to the Holders under this Indenture is intended to be exclusive of any other right
or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in
addition to every other right and remedy hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not
prevent the concurrent assertion or exercise of any other right or remedy.



     Section 6.14. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder to exercise any right or remedy accruing upon any Event of Default will impair any such
right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.



     Section 6.15. Waiver of Stay, Extension or Usury Laws. The Company and each Guarantor
covenants, to the extent that it may lawfully do so, that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension
law or any usury law or other law that would prohibit or forgive the Company or the Guarantor from
paying all or any portion of the principal of, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the
performance of this Indenture. The Company and each Guarantor hereby expressly waives, to the
extent that it may lawfully do so, all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.



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ARTICLE 7

The Trustee




     Section 7.01. General. (a) The duties and responsibilities of the Trustee are as provided
by the Trust Indenture Act and as set forth herein. Whether or not expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee is subject to this Article.



     (b) Except during the continuance of an Event of Default, the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others, and no implied covenants or
obligations will be read into this Indenture against the Trustee. In case an Event of Default has
occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.



     (c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own willful misconduct.



     Section 7.02. Certain Rights of Trustee. Subject to Trust Indenture Act Sections 315(a)
through (d):




     (a) In the absence of bad faith on its part, the Trustee may rely, and will be
protected in acting or refraining from acting, upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in any such document, but, in the case of any
document which is specifically required to be furnished to the Trustee pursuant to any
provision hereof, the Trustee shall examine the document to determine whether it conforms
to the requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein). The Trustee, in its discretion,
may make further inquiry or investigation into such facts or matters as it sees fit.




     (b) Before the Trustee acts or refrains from acting, it may require an Officers’
Certificate or an Opinion of Counsel conforming to Section 13.05 and the Trustee will not
be liable for any action it takes or omits to take in good faith in reliance on the
certificate or opinion.




     (c) The Trustee may act through its attorneys and agents and will not be responsible
for the misconduct or negligence of any agent appointed with due care.



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     (d) The Trustee will be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders, unless
such Holders have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with such
request or direction.




     (e) The Trustee will not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within its rights or powers or for any action
it takes or omits to take in accordance with the direction of the Holders in accordance
with Section 6.05 relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.




     (f) The Trustee may consult with counsel, and the written advice of such counsel or
any Opinion of Counsel will be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.




     (g) No provision of this Indenture will require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of its duties
hereunder, or in the exercise of its rights or powers, unless it receives indemnity
satisfactory to it against any loss, liability or expense.




     (h) The Trustee shall not be charged with knowledge of any Default or Event of
Default with respect to the Notes unless either (i) a Responsible Officer of the Trustee
shall have actual knowledge thereof or (ii) a written notice of such Default or Event of
Default shall have been given to the Trustee by the Company or any Holder of Notes.




     (i) The permissive rights of the Trustee to take actions enumerated in this Indenture
shall not be construed as a duty, and the Trustee shall not be answerable for other than
its negligence or willful misconduct with respect to such permissive rights.




     (j) In no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss
of profit) irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.




     (k) The rights, privileges, protections, immunities and benefits given to the
Trustee, including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities hereunder (including,
without limitation, as



70









 







Custodian, Registrar and Paying Agent), and each agent, custodian and other Person
employed to act hereunder.




     (l) The Trustee may request that the Company deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture.




     (m) The Trustee shall not be responsible or liable for any failure or delay in the
performance of its obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its reasonable control, including without limitation,
acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications service; accidents; labor disputes; acts of civil or military
authority or governmental actions; it being understood that the Trustee shall use its best
efforts to resume performance as soon as practicable under the circumstances.




     (n) The Trustee shall at no time have any responsibility or liability for or in
respect to the legality, validity or enforceability of any Collateral and any other Person
with respect thereto, or the perfection or priority of any security interest created in
any of the Collateral or maintenance of any perfection and priority, or for or with
respect to the sufficiency of the Collateral following an Event of Default.



     Section 7.03. Individual Rights of Trustee. The Trustee and any Paying Agent, Registrar or
any other agent of the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee, Paying Agent, Registrar or such other agent. However, the
Trustee is subject to Trust Indenture Act Sections 310(b) and 311.



     Section 7.04. Trustee’s Disclaimer. The Trustee (a) makes no representation as to the
validity or adequacy of this Indenture or the Notes, (b) is not accountable for the Company’s use
or application of the proceeds from the Notes and (c) is not responsible for any statement in the
Notes other than its certificate of authentication.



     Section 7.05. Notice of Default. If any Default occurs and is continuing and is known to
the Trustee, the Trustee will send notice of the Default to each Holder within 90 days after it
occurs, unless the Default has been cured; provided that, except in the case of a default in the
payment of the principal of or interest on any Note, the Trustee may withhold the notice if and so
long as the board of directors, the executive committee or a trust committee of directors of the
Trustee in good faith determines that withholding the notice is in the interest of the Holders.
Notice to Holders under this Section will be given in the manner and to the extent provided in
Trust Indenture Act §313(c).



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     Section 7.06. Reports by Trustee to Holders. Within 60 days after each May 15, beginning
with May 15, 2010, the Trustee will mail to each Holder, as provided in Trust Indenture Act §313(c)
a brief report dated as of such May 15, if required by Trust Indenture Act §313(a). The Trustee
will also mail to each Holder any report required by Trust Indenture Act §313(b).



     Section 7.07. Compensation and Indemnity. (a) The Company will pay the Trustee compensation
as agreed upon in writing for its services. The compensation of the Trustee is not limited by any
law on compensation of a Trustee of an express trust. The Company will reimburse the Trustee upon
request for all reasonable and documented out-of-pocket expenses, disbursements and advances
incurred or made by the Trustee, including the reasonable compensation and expenses of the
Trustee’s agents and counsel.



     (b) The Company will indemnify the Trustee for, and hold it harmless against, any loss or
liability or expense incurred by it without negligence or bad faith on its part arising out of or
in connection with the acceptance or administration of this Indenture and its duties under this
Indenture and the Notes, including the reasonable costs and expenses of defending itself against
any claim or liability and of complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties under this Indenture and
the Notes. The Trustee shall promptly notify the Company of any claim for which it may seek
indemnity. The Company shall defend the claim, and the Trustee shall cooperate in the defense
thereof. The Company shall have no obligation to pay for any settlement of any such claim without
its consent, which consent shall not be unreasonably withheld.



     (c) To secure the Company’s payment obligations in this Section, the Trustee will have a lien
prior to the Notes on all money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of, and interest on particular
Notes.



     (d) When the Trustee incurs expenses or renders services after an Event of Default specified
in clause (g) or (h) of Section 6.01 occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration to the extent permitted by law under apply
applicable bankruptcy, reorganization, insolvency or other similar law not or hereinafter in
effect.



     The obligations of the Company under this Section 7.07 shall survive the satisfaction and
discharge of this Indenture or the resignation or removal of the Trustee.



     Section 7.08. Replacement of Trustee. (a) (i) The Trustee may resign at any time by written
notice to the Company.




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     (ii) The Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by written notice to the Trustee.




     (iii) If the Trustee is no longer eligible under Section 7.10 or in the circumstances
described in Trust Indenture Act §310(b) any Holder that satisfies the requirements of
Trust Indenture Act §310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.




     (iv) The Company may remove the Trustee if: (A) the Trustee is no longer eligible
under Section 7.10; (B) the Trustee is adjudged a bankrupt or an insolvent; (C) a
receiver or other public officer takes charge of the Trustee or its property; or (D) the
Trustee becomes incapable of acting.



A resignation or removal of the Trustee and appointment of a successor Trustee will become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.




     (b) If the Trustee has been removed by the Holders, Holders of a majority in principal amount
of the Notes may appoint a successor Trustee with the consent of the Company. Otherwise, if the
Trustee resigns or is removed, or if a vacancy exists in the office of Trustee for any reason, the
Company will promptly appoint a successor Trustee. If the successor Trustee does not deliver its
written acceptance within 30 days after the retiring Trustee resigns or is removed, the retiring
Trustee, at the expense of the Company, the Company or the Holders of a majority in principal
amount of the outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.



     (c) Upon delivery by the successor Trustee of a written acceptance of its appointment to the
retiring Trustee and to the Company, (i) the retiring Trustee will transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section 7.07, (ii) the
resignation or removal of the retiring Trustee will become effective, and (iii) the successor
Trustee will have all the rights, powers and duties of the Trustee under this Indenture. Upon
request of any successor Trustee, the Company will execute any and all instruments for fully and
vesting in and confirming to the successor Trustee all such rights, powers and trusts. The Company
will give notice of any resignation and any removal of the Trustee and each appointment of a
successor Trustee to all Holders, and include in the notice the name of the successor Trustee and
the address of its Corporate Trust Office.



     (d) Notwithstanding replacement of the Trustee pursuant to this Section, the Company’s
obligations under Section 7.07 will continue for the benefit of the retiring Trustee.



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     (e) The Trustee agrees to give the notices provided for in, and otherwise comply with, Trust
Indenture Act §310(b).



     Section 7.09. Successor Trustee by Merger. If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another
corporation or national banking association, the resulting, surviving or transferee corporation or
national banking association without any further act will be the successor Trustee with the same
effect as if the successor Trustee had been named as the Trustee in this Indenture.



     Section 7.10.
Eligibility. This Indenture must always have a Trustee that satisfies the
requirements of Trust Indenture Act §310(a) and has a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition.



     Section 7.11. Money Held in Trust. The Trustee will not be liable for interest on any money
received by it except as it may agree with the Company. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law and except for money held
in trust under Article 8.



ARTICLE 8

Defeasance and Discharge




     Section 8.01. Discharge of Company’s Obligations. (a) Subject to paragraph (b), the
Company’s obligations under the Notes and this Indenture, and each Guarantor’s obligations under
its Note Guaranty, will terminate, and the Collateral Agreements will terminate and the Collateral
shall be released from the Liens thereunder, if:




     (i) all Notes previously authenticated and delivered (other than (A) destroyed, lost
or stolen Notes that have been replaced or (B) Notes that are paid pursuant to Section
4.01 or (C) Notes for whose payment money or U.S. Government Obligations have been held in
trust and then repaid to the Company pursuant to Section 8.05) have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by it hereunder; or




     (ii) (A) the Notes mature within one year, or all of them are to be called for
redemption within one year under arrangements satisfactory to the Trustee for giving the
notice of redemption,




     (B) the Company irrevocably deposits in trust with the Trustee, as trust
funds solely for the benefit of the Holders, money or U.S. Government
Obligations or a combination thereof sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certificate



74









 







delivered to the Trustee, without consideration of any reinvestment, to pay
principal of and interest on the Notes to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder,




     (C) no Default has occurred and is continuing on the date of the deposit,




     (D) the deposit will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to which
the Company is a party or by which it is bound, and




     (E) the Company delivers to the Trustee an Officers’ Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent provided
for herein relating to the satisfaction and discharge of this Indenture have
been complied with.



     (b) After satisfying the conditions in clause (i), only the Company’s obligations under
Section 7.07 will survive. After satisfying the conditions in clause (ii), only the Company’s
obligations in Article 2 and Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06 will survive.
In either case, the Trustee upon request will acknowledge in writing the discharge of the Company’s
obligations under the Notes and this Indenture other than the surviving obligations.



     Section 8.02. Legal Defeasance. After the 123rd day following the deposit referred to in
clause (a) below, the Company will be deemed to have paid and will be discharged from its
obligations in respect of the Notes and this Indenture (other than its obligations in Article 2
and Sections 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06) and each Guarantor’s obligations under
its Note Guaranty will terminate; provided the following conditions have been satisfied:




     (a) The Company has irrevocably deposited in trust with the Trustee, as trust funds
solely for the benefit of the Holders, money or U.S. Government Obligations or a
combination thereof sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certificate thereof delivered to the
Trustee, without consideration of any reinvestment, to pay principal of and interest on
the Notes to maturity or redemption, as the case may be, provided that any redemption
before maturity has been irrevocably provided for under arrangements satisfactory to the
Trustee.




     (b) No Default has occurred and is continuing on the date of the deposit or occurs at
any time during the 123-day period following the deposit.



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     (c) The deposit will not result in a breach or violation of, or constitute a default
under, this Indenture or any other agreement or instrument to which the Company is a party
or by which it is bound.




     (d) The Company has delivered to the Trustee




     (i) either (x) a ruling received from the Internal Revenue Service to the
effect that the Holders will not recognize income, gain or loss for federal
income tax purposes as a result of the defeasance and will be subject to federal
income tax on the same amount and in the same manner and at the same times as
would otherwise have been the case or (y) an Opinion of Counsel, based on a
change in law after the date of this Indenture, to the same effect as the ruling
described in clause (x), and




     (ii) an Opinion of Counsel to the effect that (x) the creation of the
defeasance trust does not violate the Investment Company Act of 1940, (y) the
Holders have a valid first priority Note interest in the trust funds (subject to
customary exceptions), and (z) after the passage of 123 days following the
deposit, the trust funds will not be subject to the effect of Section 547 of the
United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor
Law.




     (e) If the Notes are listed on a national securities exchange, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the deposit and
defeasance will not cause the Notes to be delisted.




     (f) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion
of Counsel, in each case stating that all conditions precedent provided for herein
relating to the defeasance have been complied with.



     Prior to the end of the 123-day period, none of the Company’s obligations under this Indenture
will be discharged. Thereafter, the Trustee upon request will acknowledge in writing the discharge
of the Company’s obligations under the Notes and this Indenture except for the surviving
obligations specified above.



     Section 8.03. Covenant Defeasance. After the 123rd day following the deposit referred to in
clause (a), the Company’s obligations set forth in Sections 4.06 through 4.17, clauses (C) and
(D) of Section 5.01(a)(iii) and Section 5.02 and each Guarantor’s obligations under its Note
Guaranty will terminate, and clauses (c), (d), (e), (f), (i) and (j) of Section 6.01 will no
longer constitute Events of Default; provided the following conditions have been satisfied:




     (a) The Company has complied with clauses (a), (b), (c), (d)(ii), (e) and (f) of
Section 8.02 and



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     (b) the Company has delivered to the Trustee an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for federal income tax purposes as a
result of the defeasance and will be subject to federal income tax on the same amount and
in the same manner and at the same times as would otherwise have been the case.



     Upon satisfaction of the conditions described above, the Company may omit to comply with the
covenants and clauses described above and shall have no liability in respect thereof, including by
reason of any reference to such covenants or clauses elsewhere in this Indenture. Except as
specifically stated above, none of the Company’s obligations under this Indenture will be
discharged.



     Section 8.04. Application of Trust Money. Subject to Section 8.05 the Trustee will hold in
trust the money or U.S. Government Obligations deposited with it pursuant to Section 8.01, 8.02
or 8.03, and apply the deposited money and the proceeds from deposited U.S. Government Obligations
to the payment of principal of and interest on the Notes in accordance with the Notes and this
Indenture. Such money and U.S. Government Obligations need not be segregated from other funds
except to the extent required by law.



     Section 8.05. Repayment to Company. Subject to Sections 7.07, 8.01, 8.02 and 8.03, the
Trustee will promptly pay to the Company upon request any excess money held by the Trustee at any
time and thereupon be relieved from all liability with respect to such money. The Trustee will pay
to the Company upon request any money held for payment with respect to the Notes that remains
unclaimed for two years, provided that before making such payment the Trustee may at the expense of
the Company publish once in a newspaper of general circulation in New York City, or send to each
Holder entitled to such money, notice that the money remains unclaimed and that after a date
specified in the notice (at least 30 days after the date of the publication or notice) any
remaining unclaimed balance of money will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look solely to the Company for payment, unless applicable law
designates another Person, and all liability of the Trustee with respect to such money will cease.



     Section 8.06. Reinstatement. If and for so long as the Trustee is unable to apply any money
or U.S. Government Obligations held in trust pursuant to Section 8.01, 8.02 or 8.03 by reason of
any legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under
this Indenture and the Notes and the Guarantors’ obligations under this Indenture and the Note
Guaranties will be reinstated as though no such deposit in trust had been made. If the Company
makes any payment of principal of or interest on any Notes because of the reinstatement of its
obligations, it will be subrogated to the rights of the Holders of such Notes to receive such
payment from the money or U.S. Government Obligations held in trust.



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ARTICLE 9

Amendments, Supplements and Waivers




     Section 9.01. Amendments without Consent of Holders. The Company and the Trustee (and, in
the case of the Collateral Agreements, the Noteholder Collateral Agent) may amend or supplement
this Indenture, the Notes and/or the Collateral Agreements without notice to or the consent of any
Noteholder




     (i) to cure any ambiguity, defect or inconsistency in this Indenture or the Notes;




     (ii) to comply with Article 5;




     (iii) to comply with any requirements of the Commission in connection with the
qualification of this Indenture under the Trust Indenture Act;




     (iv) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee;




     (v) to provide for uncertificated Notes in addition to or in place of certificated
Notes, provided that the uncertified Notes are issued in registered form for purposes of
Section 163(f) of the Internal Revenue Code of 1986, or in a manner such that the
uncertificated Notes are described in Section 163(f)(2)(B) of the Internal Revenue Code of
1986;




     (vi) to provide for any Guarantee of the Notes, to provide security for the Notes or
to confirm and evidence the release, termination or discharge of any Guarantee of or Lien
securing the Notes when such release, termination or discharge is permitted by this
Indenture and the Collateral Agreements; or




     (vii) to conform any provision to the section in the Offering Circular entitled
“Description of the Exchange Notes”.



     In addition, the Company may amend the Collateral Agreements, and enter into such additional
agreements, as may be necessary (a) to secure additional Debt to be Incurred by the Company or a
Guarantor by Liens on the Collateral pursuant to the Collateral Agreements if such Debt is
permitted to be Incurred and secured by such Liens under this Indenture, or (b) to evidence the
requisite priorities of the Liens granted by the Collateral Agreements and any other Permitted
Liens on the Collateral.



     Section 9.02. Amendments with Consent of Holders. (a) Except as otherwise provided in
Sections 6.02, 6.04, and 6.07 or paragraph (b), the Company and the Trustee (and, in the case of
the Collateral Agreements, the Noteholder Collateral Agent) may amend this Indenture, the Notes
and/or the



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Collateral Agreements with the written consent of the Holders of a majority in principal
amount of the then outstanding Notes, and the Holders of a majority in principal amount of the then
outstanding Notes by written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture, the Notes or the Collateral Agreements.




     (b) Notwithstanding the provisions of paragraph (a), without the consent of each Holder
affected, an amendment or waiver may not




     (i) reduce the principal amount of or change the Stated Maturity of any installment
of principal of any Note,




     (ii) reduce the rate of or change the Stated Maturity of any interest payment on any
Note,




     (iii) reduce the amount payable upon the redemption of any Note or change the time of
any mandatory redemption or, in respect of an optional redemption, the times at which any
Note may be redeemed or, once notice of redemption has been given, the time at which it
must thereupon be redeemed,




     (iv) after the time an Offer to Purchase is required to have been made, reduce the
purchase amount or purchase price, or extend the latest expiration date or purchase date
thereunder,




     (v) make any Note payable in money other than that stated in the Note,




     (vi) impair the right of any Holder of Notes to receive any principal payment or
interest payment on such Holder’s Notes, on or after the Stated Maturity thereof, or to
institute suit for the enforcement of any such payment,




     (vii) make any change in the percentage of the principal amount of the Notes required
for amendments or waivers,




     (viii) modify or change any provision of this Indenture affecting the ranking of the
Notes or any Note Guaranty in a manner adverse to the Holders of the Notes, or




     (ix) except as provided in Article 10 make any change in any Note Guaranty that
would adversely affect the Noteholders;



provided that Liens created by the Collateral Agreements on all or substantially all of the
Collateral (other than in accordance with the terms of the Intercreditor Agreement, the Collateral
Agreements and this Indenture) may be released with






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the consent of Holders holding not less than 75% in aggregate principal amount of the then
outstanding Notes.




It is not necessary for Noteholders to approve the particular form of any proposed amendment,
supplement or waiver, but is sufficient if their consent approves the substance thereof.




     (c) An amendment, supplement or waiver under this Section becomes effective on receipt by the
Trustee of written consents from the Holders of the requisite percentage in principal amount of the
outstanding Notes. After an amendment, supplement or waiver under this Section becomes effective,
the Company will send to the Holders affected thereby a notice briefly describing the amendment,
supplement or waiver. The Company will send supplemental indentures to Holders upon request. Any
failure of the Company to send such notice, or any defect therein, will not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.



     Section 9.03. Effect of Consent. (a) After an amendment, supplement or waiver becomes
effective, it will bind every Holder unless it is of the type requiring the consent of each Holder
affected. If the amendment, supplement or waiver is of the type requiring the consent of each
Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it
and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting
Holder.



     (b) If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require
the Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of
the changed terms on the Note and return it to the Holder, or exchange it for a new Note that
reflects the changed terms. The Trustee may also place an appropriate notation on any Note
thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not
affected by any failure to annotate or exchange Notes in this fashion.



     Section 9.04. Trustee’s Rights and Obligations. The Trustee is entitled to receive, and
will be fully protected in relying upon, in addition to the documents required by Section 13.04,
an Officers’ Certificate and an Opinion of Counsel each stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article is authorized or permitted by
this Indenture. If the Trustee has received such an Officers’ Certificate and an Opinion of
Counsel, it shall sign the amendment, supplement or waiver so long as the same does not adversely
affect the rights of the Trustee. The Trustee may, but is not obligated to, execute any amendment,
supplement or waiver that affects the Trustee’s own rights, duties or immunities under this
Indenture.



     Section 9.05. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act.



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     Section 9.06. Payments for Consents. Neither the Company nor any of its Subsidiaries or
Affiliates may, directly or indirectly, pay or cause to be paid any consideration, whether by way
of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or
amendment of any of the terms or provisions of this Indenture or the Notes unless such
consideration is offered to be paid or agreed to be paid to all Holders of the Notes that consent,
waive or agree to amend such term or provision within the time period set forth in the solicitation
documents relating to the consent, waiver or amendment.



ARTICLE 10

Guaranties




     Section 10.01. The Guaranties. Subject to the provisions of this Article, each Guarantor
hereby irrevocably and unconditionally guarantees, jointly and severally, the full and punctual
payment (whether at Stated Maturity, upon redemption, purchase pursuant to an Offer to Purchase or
acceleration, or otherwise) of the principal of, premium, if any, and interest on, and all other
amounts payable under, each Note, and the full and punctual payment of all other amounts payable by
the Company under this Indenture. Upon failure by the Company to pay punctually any such amount,
each Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner
specified in this Indenture.



     Section 10.02. Guaranty Unconditional. The obligations of each Guarantor hereunder are
unconditional and absolute and, without limiting the generality of the foregoing, will not be
released, discharged or otherwise affected by




     (a) any extension, renewal, settlement, compromise, waiver or release in respect of
any obligation of the Company under this Indenture or any Note, by operation of law or
otherwise;




     (b) any modification or amendment of or supplement to this Indenture or any Note;




     (c) any change in the corporate existence, structure or ownership of the Company, or
any insolvency, bankruptcy, reorganization or other similar proceeding affecting the
Company or its assets or any resulting release or discharge of any obligation of the
Company contained in this Indenture or any Note;




     (d) the existence of any claim, set-off or other rights which the Guarantor may have
at any time against the Company, the Trustee or any other Person, whether in connection
with this Indenture or any unrelated transactions, provided that nothing herein prevents
the assertion of any such claim by separate suit or compulsory counterclaim;



81









 






     (e) any invalidity or unenforceability relating to or against the Company for any
reason of this Indenture or any Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Company of the principal of or interest on any
Note or any other amount payable by the Company under this Indenture; or




     (f) any other act or omission to act or delay of any kind by the Company, the Trustee
or any other Person or any other circumstance whatsoever which might, but for the
provisions of this paragraph, constitute a legal or equitable discharge of or defense to
such Guarantor’s obligations hereunder.



     Section 10.03. Discharge; Reinstatement. Each Guarantor’s obligations hereunder will remain
in full force and effect until the principal of, premium, if any, and interest on the Notes and all
other amounts payable by the Company under this Indenture have been paid in full. If at any time
any payment of the principal of, premium, if any, or interest on any Note or any other amount
payable by the Company under this Indenture is rescinded or must be otherwise restored or returned
upon the insolvency, bankruptcy or reorganization of the Company or otherwise, each Guarantor’s
obligations hereunder with respect to such payment will be reinstated as though such payment had
been due but not made at such time.



     Section 10.04. Waiver by the Guarantors. Each Guarantor irrevocably waives acceptance
hereof, presentment, demand, protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any Person against the Company or any other
Person.



     Section 10.05. Subrogation and Contribution. Upon making any payment with respect to any
obligation of the Company under this Article, the Guarantor making such payment will be subrogated
to the rights of the payee against the Company with respect to such obligation, provided that the
Guarantor may not enforce either any right of subrogation, or any right to receive payment in the
nature of contribution, or otherwise, from any other Guarantor, with respect to such payment so
long as any amount payable by the Company hereunder, or under the Notes remains unpaid.



     Section 10.06. Stay of Acceleration. If acceleration of the time for payment of any amount
payable by the Company under this Indenture or the Notes is stayed upon the insolvency, bankruptcy
or reorganization of the Company, all such amounts otherwise subject to acceleration under the
terms of this Indenture are nonetheless payable by the Guarantors hereunder forthwith on demand by
the Trustee or the Holders.



     Section 10.07. Limitation on Amount of Guaranty. Notwithstanding anything to the contrary
in this Article, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that
it is the intention of all such parties that



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the Note Guaranty of such Guarantor not constitute a fraudulent conveyance under applicable
fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision
of state law. To effectuate that intention, the Trustee, the Holders and the Guarantors hereby
irrevocably agree that the obligations of each Guarantor under its Note Guaranty are limited to the
maximum amount that would not render the Guarantor’s obligations subject to avoidance under
applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable
provision of state law.




     Section 10.08. Execution and Delivery of Guaranty. The execution by each Guarantor of this
Indenture (or a supplemental indenture substantially in the form of Exhibit B) evidences the Note
Guaranty of such Guarantor, whether or not the person signing as an officer of the Guarantor still
holds that office at the time of authentication of any Note. The delivery of any Note by the
Trustee after authentication constitutes due delivery of the Note Guaranty set forth in this
Indenture on behalf of each Guarantor.



     Section 10.09. Release of Guaranty. The Note Guaranty of a Guarantor will terminate upon




     (a) a sale or other disposition (including by way of consolidation or merger) of the
Guarantor or the sale or disposition of all or substantially all the assets of the
Guarantor (in each case other than to the Company or a Restricted Subsidiary) otherwise
permitted by this Indenture,




     (b) the designation in accordance with this Indenture of the Guarantor as an
Unrestricted Subsidiary, or




     (c) defeasance or discharge of the Notes, as provided in Article 8.



     Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of
Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in
order to evidence the release of the Guarantor from its obligations under its Note Guaranty.



ARTICLE 11

Ranking of Liens




     Section 11.01. Agreement for the Benefit of Holders of First-Priority Liens. The Trustee
and the Noteholder Collateral Agent agree, and each Holder of the Notes by accepting a Note,
agrees:



     (a) So long as no First Lien Indebtedness is outstanding, upon the occurrence and during the
continuance of an Event of Default, the Noteholder Collateral Agent will be permitted (together
with the representative of any other



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Debt secured by parity Liens on the Collateral), to take steps with respect to remedies and
enforcement, acting at the direction of the Holders of a majority in principal amount of the Notes.




     (b) If First Lien Indebtedness is incurred, the Noteholder Collateral Agent will, and is
hereby authorized to, at such time enter into an Intercreditor Agreement substantially in the form
of Exhibit C attached to this Indenture, which will establish the subordinate priority status of
the Second-Priority Liens and to take all steps to effectuate such agreement, provided that, with
respect to any real property subject to a Mortgage, if subordination of such Mortgage to the First
Priority Liens is required and any Liens that secure a monetary obligation of the Company or a
Guarantor (other than any judgment Lien with respect to which no judgment default has occurred and
is continuing) have been recorded against such real property after the recording of the applicable
Mortgage, such Liens shall be either released of record or similarly subordinated to the First
Priority Liens in connection with any such subordination of the applicable Mortgage. This
Indenture, Notes, Note Guarantees and Collateral Agreements will at such time be subject to the
Intercreditor Agreement.



     Section 11.02. Notes, Guarantees And Other Second-Priority Lien Obligations Not
Subordinated. The provisions of this Article 11 are intended solely to set forth the relative
ranking, as Liens, of the Second-Priority Liens as against the First-Priority Liens. The Notes and
Note Guarantees are senior non-subordinated Obligations of the Company and Guarantors. Neither the
Notes, the Note Guarantees and other Second-Priority Lien Obligations nor the exercise or
enforcement of any right or remedy for the payment or collection thereof (other than the exercise
of rights and remedies of a secured party, which are subject to the Intercreditor Agreement) are
intended to be or will ever be, by reason of the provisions of this Article 11, in any respect
subordinated, deferred, postponed, restricted or prejudiced.



     Section 11.03. Relative Rights. The Intercreditor Agreement defines the relative rights, as
lienholders, of holders of Second-Priority Liens and holders of First-Priority Liens. Nothing in
this Indenture or the Intercreditor Agreement will:



     (a) impair, as between the Company and Holders, the obligation of the Company, which is
absolute and unconditional, to pay principal of, premium and interest on the Notes in accordance
with their terms or to perform any other obligation of the Company or any other obligor under this
Indenture, Notes, Note Guarantees and Collateral Agreements;



     (b) restrict the right of any Holder to sue for payments that are then due and owing;



     (c) prevent the Trustee, the Noteholder Collateral Agent or any Holder from exercising against
the Company or any other obligor any of its other



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available remedies upon a Default or Event of Default (other than its rights as a secured
party, which are subject to the Intercreditor Agreement); or




     (d) restrict the right of the Trustee, the Noteholder Collateral Agent or any Holder:



     (1) to file and prosecute a petition seeking an order for relief in an involuntary bankruptcy
case as to any obligor or otherwise to commence, or seek relief commencing, any insolvency or
liquidation proceeding involuntarily against any obligor;



     (2) to make, support or oppose any request for an order for dismissal, abstention or
conversion in any insolvency or liquidation proceeding;



     (3) to make, support or oppose, in any insolvency or liquidation proceeding, any request for
an order extending or terminating any period during which the debtor (or any other Person) has the
exclusive right to propose a plan of reorganization or other dispositive restructuring or
liquidation plan therein;



     (4) to seek the creation of, or appointment to, any official committee representing creditors
(or certain of the creditors) in any insolvency or liquidation proceedings and, if appointed, to
serve and act as a member of such committee without being in any respect restricted or bound by, or
liable for, any of the obligations under this Article 11;



     (5) to seek or object to the appointment of any professional person to serve in any capacity
in any insolvency or liquidation proceeding or to support or object to any request for compensation
made by any professional person or others therein;



     (6) to make, support or oppose any request for an order appointing a trustee or examiner in
any insolvency or liquidation proceedings; or



     (7) otherwise to make, support or oppose any request for relief in any insolvency or
liquidation proceeding that it is permitted by law to make, support or oppose:



     (x) if it were a holder of unsecured claims; or



     (y) as to any matter relating to any plan of reorganization or other restructuring or
liquidation plan or as to any matter relating to the administration of the estate or the
disposition of the case or proceeding;



in each case, except as set forth in the Intercreditor Agreement.







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ARTICLE 12

Collateral And Security




     Section 12.01. Collateral Agreements. The payment of the principal of and interest and
premium, if any, on the Notes when due, whether on an interest payment date, at maturity, by
acceleration, repurchase, redemption or otherwise and whether by the Company pursuant to the Notes
or by any Guarantor pursuant to its Note Guarantees, the payment of all other Second-Priority Lien
Obligations and the performance of all other obligations of the Company and the Guarantors under
this Indenture, the Notes, the Note Guarantees and the Collateral Agreements are secured by
Second-Priority Liens on the Collateral, subject to Permitted Liens, as provided in the Collateral
Agreements which the Company and the Guarantors have entered into simultaneously with the execution
of this Indenture, or with respect to any Mortgages, subsequent to the Issue Date, and will be
secured as provided in the Collateral Agreements hereafter delivered as required or permitted by
this Indenture.



     Section 12.02. Noteholder Collateral Agent.



     (a) The Company hereby appoints Wilmington Trust Company to act as Noteholder Collateral
Agent, and the Noteholder Collateral Agent shall have the privileges, powers and immunities as set
forth herein and in the Collateral Agreements. The Company and the Guarantors hereby agree that
the Noteholder Collateral Agent shall hold the Collateral in trust for the benefit of all of the
Holders and the Trustee, in each case, pursuant to the terms of the Collateral Agreements and the
Noteholder Collateral Agent is hereby authorized to execute and deliver the Collateral Agreements.



     (b) Subject to Section 7.01, neither the Trustee nor the Noteholder Collateral Agent nor any
of their respective officers, directors, employees, attorneys or agents will be responsible or
liable for the existence, genuineness, value or protection of any Collateral, for the legality,
enforceability, effectiveness or sufficiency of the Collateral Agreements, for the creation,
perfection, priority, maintenance, sufficiency or protection of any Second-Priority Lien, or for
any defect or deficiency as to any such matters, or for any failure to demand, collect, foreclose
or realize upon or otherwise enforce any of the Second-Priority Liens or Collateral Agreements or
any delay in doing so.



     (c) The Noteholder Collateral Agent will be subject to such directions as may be given it by
the Trustee from time to time (as required or permitted by this Indenture). Except as directed by
the Trustee as required or permitted by this Indenture or as required or permitted by the
Collateral Agreements, the Noteholder Collateral Agent will not be obligated:




     (i) to act upon directions purported to be delivered to it by any other Person;



86









 






     (ii) to foreclose upon or otherwise enforce any Second-Priority Lien; or




     (iii) to take any other action whatsoever with regard to any or all of the
Second-Priority Liens, Collateral Agreements or Collateral.



     (d) The Noteholder Collateral Agent will be accountable only for amounts that it actually
receives as a result of the enforcement of the Second-Priority Liens or the Collateral Agreements.



     (e) In acting as Noteholder Collateral Agent, the Noteholder Collateral Agent may rely upon
and enforce for its own benefit each and all of the rights, powers, immunities, indemnities and
benefits of the Trustee under Article 7 hereof, each of which shall also be deemed to be for the
benefit of the Noteholder Collateral Agent.



     (f) At all times when the Trustee is not itself the Noteholder Collateral Agent, the Company
will deliver to the Trustee copies of all Collateral Agreements delivered to the Noteholder
Collateral Agent and copies of all documents delivered to the Noteholder Collateral Agent pursuant
to the Collateral Agreements.



     Section 12.03. Collateral Proceeds Account. (a) Pursuant to this Indenture and the
Collateral Agreements and subject to the terms of the Intercreditor Agreement if First-Lien
Indebtedness is Incurred, the Company and the Guarantors will deposit in a cash collateral account
(the “Collateral Proceeds Account”):




     (i) cash proceeds from any sale, lease, transfer or other disposition (or series of
related sales, leases, transfers or dispositions) of Collateral having an aggregate fair
market value of more than $10 million;




     (ii) any cash proceeds in excess of $10 million of any Collateral taken by eminent
domain, expropriation or other similar governmental taking; and




     (iii) cash proceeds in excess of $10 million of insurance upon any part of the
Collateral.



     (b) The Noteholder Collateral Agent will have a perfected security interest in the account for
the benefit of the Trustee and the Noteholders. Proceeds of the account may only be released to the
Company or the applicable Guarantor for use as permitted by clause (c) or (d) described under
Section 4.13.



     (c) The Company will not be required to deposit any proceeds from eminent domain or other
similar taking or insurance to the extent that it furnishes the Noteholder Collateral Agent and the
Trustee with an Officers’ Certificate



87









 





certifying that it has invested an amount in compliance with such clauses equal to, or in
excess of, the amount of such proceeds in anticipation of receipt of such funds.




     (d) The Company and the Guarantors will be required to comply with the requirements described
above with respect to dispositions of Collateral before they may use the moneys in the Collateral
Proceeds Account.



     Section 12.04. Authorization Of Actions To Be Taken.



     (a) Each Holder, by its acceptance thereof, consents and agrees to the terms of each
Collateral Agreement, as originally in effect on the Issue Date (or, with respect to any Mortgages,
as will be granted pursuant to Section 4.19(a) of this Indenture) and as amended, supplemented or
replaced from time to time in accordance with its terms or the terms of this Indenture, authorizes
and directs the Trustee and the Noteholder Collateral Agent to execute and deliver the Collateral
Agreements to which it is a party and authorizes and empowers the Trustee and the Noteholder
Collateral Agent to bind the Holders as set forth in the Collateral Agreements to which it is a
party and to perform its obligations and exercise its rights and powers thereunder.



     (b) The Noteholder Collateral Agent and the Trustee are authorized and empowered to receive
for the benefit of the Holders any funds collected or distributed under the Collateral Agreements
to which the Noteholder Collateral Agent or Trustee is a party and to make further distributions of
such funds to the Holders according to the provisions of this Indenture.



     (c) Following an Event of Default, subject to the provisions of Section 7.01, Section 7.02,
Article 11 and the Intercreditor Agreement, the Trustee may (but without any obligation to do so),
in its sole discretion and without the consent of the Holders, direct, on behalf of the Holders,
the Noteholder Collateral Agent to take all actions it deems necessary or appropriate in order to:




     (i) foreclose upon or otherwise enforce any or all of the Second-Priority Liens;




     (ii) enforce any of the terms of the Collateral Agreements to which the Noteholder
Collateral Agent or Trustee is a party; or




     (iii) collect and receive payment of any and all Second-Priority Lien Obligations.



     Subject to the Intercreditor Agreement, Section 7.01, Section 7.02 and Article 11, the Trustee
is authorized and empowered to institute and maintain, or direct the Noteholder Collateral Agent to
institute and maintain, such suits and proceedings as it may deem expedient to protect or enforce
the Second-Priority Liens or the Collateral Agreements to which the Noteholder Collateral Agent or



88









 





Trustee is a party or to prevent any impairment of Collateral by any acts that may be unlawful
or in violation of the Collateral Agreements to which the Noteholder Collateral Agent or Trustee is
a party or this Indenture, and such suits and proceedings as the Trustee or the Noteholder
Collateral Agent may deem expedient to preserve or protect its interests and the interests of the
Holders in the Collateral, including power to institute and maintain suits or proceedings to
restrain the enforcement of or compliance with any legislative or other governmental enactment,
rule or order that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security interest hereunder or be
prejudicial to the interests of Holders, the Trustee or the Noteholder Collateral Agent.




     Section 12.05. Release Of Second Priority Liens.



     (a) The Second-Priority Liens will be released, with respect to the Notes and the Guarantees:




     (i) in whole, upon payment in full of the principal of, accrued and unpaid interest
and premium, if any, on the Notes and payment in full of all other Obligations in respect
thereof that are due and payable at or prior to the time such principal, accrued and
unpaid interest and premium, if any, on the Notes are paid;




     (ii) in whole, upon discharge and defeasance of this Indenture pursuant to Article 8;




     (iii) with the consent of the requisite Holders of the Notes pursuant to Article 9,
including, without limitation, consents obtained in connection with a tender offer or
exchange offer for, or purchase of, the Notes;




     (iv) in connection with any disposition of Collateral to any Person other than the
Company or any of the Restricted Subsidiaries (but excluding any transaction subject to
Article 5 where the recipient is required to become the obligor on the Notes or a Note
Guaranty) that is permitted by this Indenture (with respect to the Lien on such
Collateral);




     (v) provided that such asset has not been so transferred prior to the Issue Date,
such that it does not secure the Notes, the Lien on an automatic sow caster with a book
value of less than $5 million presently located in Century Aluminum of West Virginia, Inc.
shall be released upon its transfer to Helguvik within 180 days after the Issue Date so
long as such transfer is otherwise permitted under this Indenture; or




     (vi) if First Lien Indebtedness is incurred, the Intercreditor Agreement will provide
that the Liens securing the Notes and the Note Guarantees will be released on any
Collateral to the extent such Collateral



89









 







is disposed of in connection with the enforcement of the First-Priority Liens,
provided that the Lien securing the Notes and the Note Guarantees will remain on proceeds
thereof.



     (b) If an instrument confirming the release of the Second-Priority Liens pursuant to Section
12.05(a) is requested by the Company or a Guarantor, then upon delivery to the Trustee of an
Officers’ Certificate requesting execution of such an instrument, accompanied by:




     (i) an Opinion of Counsel confirming that such release is permitted by Section
12.05(a);




     (ii) all instruments requested by the Company to effectuate or confirm such release;
and




     (iii) such other certificates and documents as the Trustee or Noteholder Collateral
Agent may reasonably request to confirm the matters set forth in Section 12.05(a) that
are required by this Indenture or the Collateral Agreements,



the Trustee will, if such instruments and documents are reasonably satisfactory to the Trustee and
Noteholder Collateral Agent, instruct the Noteholder Collateral Agent to execute and deliver, and
the Noteholder Collateral Agent will promptly execute and deliver, such instruments.




     (c) All instruments effectuating or confirming any release of any Second-Priority Liens will
have the effect solely of releasing such Second-Priority Liens as to the Collateral described
therein, on customary terms and without any recourse, representation, warranty or liability
whatsoever.



     (d) The Company will bear and pay all costs and expenses associated with any release of
Second-Priority Liens pursuant to this Section 12.05, including all reasonable fees and
disbursements of any attorneys or representatives acting for the Trustee or for the Noteholder
Collateral Agent.



     Section 12.06. Filing, Recording And Opinions.



     (a) The Company will comply with the provisions of TIA §314(b) and §314(d). Any certificate
or opinion required by TIA §314(d) may be made by an Officer of the Company except in cases where
TIA §314(d) requires that such certificate or opinion be made by an independent engineer, appraiser
or other expert. Notwithstanding anything to the contrary herein, the Company and the Guarantors
will not be required to comply with all or any portion of TIA §314(d) if they determine, in good
faith based on advice of counsel (which may be internal counsel), that under the terms of that
section and/or any interpretation or guidance as to the meaning thereof of the Commission and its
staff, including “no action” letters or exemptive orders, all or any portion of TIA §314(d) is
inapplicable to



90









 





the released Collateral. Upon such determination, the Company shall deliver an Officers’
Certificate to the Trustee stating that all or any portion of the TIA §314(b) is inapplicable to
the released Collateral. To the extent the Company is required to furnish to the Trustee an
Opinion of Counsel pursuant to TIA §314(b)(2), the Company will furnish such opinion prior to each
December 1.




     (b) Any release of Collateral permitted by Section 12.05 hereof or the Collateral Agreements
will be deemed not to impair the Liens under this Indenture and the Collateral Agreements in
contravention thereof and any person that is required to deliver a certificate or opinion pursuant
to §314(d) of the TIA or otherwise under this Indenture or the Collateral Agreements, shall be
entitled to rely upon the foregoing as a basis for delivery of such certificate or opinion. The
Trustee may, to the extent permitted by Section 7.01 and 7.02 hereof, accept as conclusive evidence
of compliance with the foregoing provisions the appropriate statements contained in such documents
and opinion.



     (c) If any Collateral is released in accordance with this Indenture or any Collateral
Agreement at a time when the Trustee is not itself also the Noteholder Collateral Agent and if the
Company has delivered the certificates and documents required by the Collateral Agreements and
permitted to be delivered by Section 12.04 (if any), the Trustee will determine whether it has
received all documentation required by TIA §314(d) in connection with such release and, based on
such determination and the Opinion of Counsel delivered pursuant to Section 12.04, if any, will,
upon request, deliver a certificate to the Noteholder Collateral Agent setting forth such
determination.



ARTICLE 13

Miscellaneous




     Section 13.01. Trust Indenture Act Of 1939. This Indenture shall incorporate and be
governed by the provisions of the Trust Indenture Act that are required to be part of and to govern
indentures qualified under the Trust Indenture Act.



     Section 13.02. Noteholder Communications; Noteholder Actions. The rights of Holders to
communicate with other Holders with respect to their rights under this Indenture or the Notes and
the corresponding rights and duties of the Company and the Trustee shall be as provided by §312 of
the TIA.



     Section 13.03. Notices. (a) Any notice or communication to the Company will be deemed given
if in writing (i) when delivered in person or (ii) five days after mailing when mailed by first
class mail, or (iii) when sent by facsimile transmission, with transmission confirmed. Notices or
communications to a Guarantor will be deemed given if given to the Company. Any notice to the
Trustee will be effective only upon receipt. In each case the notice or communication should be
addressed as follows:



91









 





     if to the Company:


Century Aluminum Company


2511 Garden Road, Building A, Suite 200,

Monterey, CA 93940

Facsimile: (831) 642-9080

Attn: Chief Financial Officer



     if to the Trustee:



Wilmington
Trust Company

Rodney Square North

1100 North Market Street

Wilmington, DE 19890

Facsimile: (302) 636-4145

Attn: Corporate Capital Markets



The Company or the Trustee by notice to the other may designate additional or different addresses
for subsequent notices or communications.




     (b) Except as otherwise expressly provided with respect to published notices, any notice or
communication to a Holder will be deemed given when mailed to the Holder at its address as it
appears on the Register by first class mail or, as to any Global Note registered in the name of DTC
or its nominee, as agreed by the Company, the Trustee and DTC. Copies of any notice or
communication to a Holder, if given by the Company, will be mailed to the Trustee at the same time.
Defect in mailing a notice or communication to any particular Holder will not affect its
sufficiency with respect to other Holders.



     (c) Where this Indenture provides for notice, the notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and the waiver will be
the equivalent of the notice. Waivers of notice by Holders must be filed with the Trustee, but
such filing is not a condition precedent to the validity of any action taken in reliance upon such
waivers.



     Section 13.04. Certificate And Opinion As To Conditions Precedent. Upon any request or
application by the Company to the Trustee to take any action under this Indenture, the Company will
furnish to the Trustee:




     (a) an Officers’ Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with; and




     (b) an Opinion of Counsel stating that all such conditions precedent have been
complied with.



92









 





     Section 13.05. Statements Required In Certificate Or Opinion. Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture must include
(subject to customary language and exceptions in the case of an Opinion of Counsel):




     (a) a statement that each person signing the certificate or opinion has read the
covenant or condition and the related definitions;




     (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in the certificate or opinion is based;




     (c) a statement that, in the opinion of each such person, that person has made such
examination or investigation as is necessary to enable the person to express an informed
opinion as to whether or not such covenant or condition has been complied with; and




     (d) a statement as to whether or not, in the opinion of each such person, such
condition or covenant has been complied with, provided that an Opinion of Counsel may rely
on an Officers’ Certificate or certificates of public officials with respect to matters of
fact.



     Section 13.06. Payment Date Other Than A Business Day. If any payment with respect to a
payment of any principal of, premium, if any, or interest on any Note (including any payment to be
made on any date fixed for redemption or purchase of any Note) is due on a day which is not a
Business Day, then the payment need not be made on such date, but may be made on the next Business
Day with the same force and effect as if made on such date, and no interest will accrue with
respect to such payment for the intervening period.



     Section 13.07. Governing Law. This Indenture, including any Note Guaranties, and the Notes
shall be governed by, and construed in accordance with, the laws of the State of New York.



     Section 13.08. No Adverse Interpretation Of Other Agreements. This Indenture may not be
used to interpret another indenture or loan or debt agreement of the Company or any Subsidiary of
the Company, and no such indenture or loan or debt agreement may be used to interpret this
Indenture.



     Section 13.09. Successors. All agreements of the Company or any Guarantor in this Indenture
and the Notes will bind its successors. All agreements of the Trustee in this Indenture will bind
its successor.



     Section 13.10. Duplicate Originals. The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



93









 





     Section 13.11. Separability. In case any provision in this Indenture or in the Notes is
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions will not in any way be affected or impaired thereby.



     Section 13.12. Table Of Contents And Headings. The Table of Contents, Cross-Reference Table
and headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and in no way modify or restrict
any of the terms and provisions of this Indenture.



     Section 13.13. No Liability Of Directors, Officers, Employees, Incorporators And
Stockholders. No director, officer, employee, incorporator, member or stockholder of the Company
or any Guarantor, as such, will have any liability for any obligations of the Company or such
Guarantor under the Notes, any Note Guaranty, or this Indenture or the Collateral Agreements or for
any claim based on, in respect of, or by reason of, such obligations. Each Holder of Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes.



94









 





SIGNATURES




     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.



	 	 	 	 	 
	 	CENTURY ALUMINUM COMPANY, as Issuer

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Senior Vice President 	 
	 



	 	 	 	 	 
	 	BERKELEY ALUMINUM, INC., as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CENTURY ALUMINUM OF WEST
VIRGINIA, INC., as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CENTURY CALIFORNIA, LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 



95









 






	 	 	 	 	 



	 	 	 	 	 
	 	CENTURY KENTUCKY, INC., as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CENTURY ALUMINUM HOLDINGS, INC., as
a Guarantor
 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	METALSCO LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	SKYLINER LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	NSA GENERAL PARTNERSHIP, as a
Guarantor


By: Skyliner, LLC, its General Partner

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 



96









 






	 	 	 	 	 



	 	 	 	 	 
	 	CENTURY ALUMINUM OF KENTUCKY GENERAL PARTNERSHIP, as

a Guarantor


By: Skyliner, LLC, its General Partner

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	HANCOCK ALUMINUM LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 
	 	CENTURY ALUMINUM OF KENTUCKY LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	 	CENTURY LOUISIANA, INC., as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	Name:  	William J. Leatherberry 	 
	 	 	Title:  	Vice President 	 
	 
	 	VIRGIN ISLANDS ALUMINA CORPORATION,
LLC, as a Guarantor

 	 
	 	By:  	/s/ William J. Leatherberry
 	 
	 	 	William J. Leatherberry, Attorney-in-Fact 	 



97









 






	 	 	 	 	 



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY, as Trustee and

Noteholder Collateral Agent

 	 
	 	By:  	/s/ Lori L. Donahue
 	 
	 	 	Name:  	Lori L. Donahue 	 
	 	 	Title:  	Assistant Vice President 	 




98











 





EXHIBIT A




[FACE OF NOTE]




CENTURY ALUMINUM COMPANY




8% Senior Secured Notes due 2014




CUSIP No.

$

No.




     Century Aluminum Company, a Delaware corporation (the “Company”, which term includes any
successor under the Indenture hereinafter referred to), for value received, promises to pay to CEDE
& CO., or its registered assigns, the principal sum of
                                         ($___) or such other amount
as indicated on the Schedule of Exchange of Notes attached hereto on May 15, 2014.



     Interest Rate: 8 % per annum.



     Interest Payment Dates: May 15 and November 15 commencing, May 15, 2010.



     Regular Record Dates: May 1 and November 1.



     Reference is hereby make to the further provisions of this Note set forth on the reverse
hereof, which will for all purposes have the same effect as if set forth at this place.



     IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by
its duly authorized officer.



Date:




	 	 	 	 	 
	 	CENTURY ALUMINUM COMPANY

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



A-1









 






	 	 	 	 	 



(Form of Trustee’s Certificate of Authentication)





     This is one of the 8% Senior Secured Notes due 2014 described in the Indenture referred to in
this Note.



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY,

 as Trustee



 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 



A-2









 






	 	 	 	 	 



[REVERSE SIDE OF NOTE]




CENTURY ALUMINUM COMPANY




8% Senior Secured Notes due 2014




1. Principal and Interest.





     The Company promises to pay the principal of this Note on May 15, 2014.



     The Company promises to pay interest on the principal amount of this Note on each interest
payment date, as set forth on the face of this Note, at the rate of 8% per annum (subject to
adjustment as provided below).



     Interest will be payable semiannually (to the holders of record of the Notes at the close of
business on the May 1 or November 1 immediately preceding the interest payment date) on each
interest payment date, commencing, May 15, 2010.



     Interest on this Note will accrue from the most recent date to which interest has been paid on
this Note (or, if there is no existing default in the payment of interest and if this Note is
authenticated between a regular record date and the next interest payment date, from such interest
payment date) or, if no interest has been paid, from the Issue Date. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.



     The Company will pay interest on overdue principal, premium, if any, and interest at a rate
per annum that is 2% in excess of 8%. Interest not paid when due and any interest on principal,
premium or interest not paid when due will be paid to the Persons that are Holders on a special
record date, which will be the 15th day preceding the date fixed by the Company for the payment of
such interest, whether or not such day is a Business Day. At least 15 days before a special record
date, the Company will send to each Holder and to the Trustee a notice that sets forth the special
record date, the payment date and the amount of interest to be paid.



2. Indentures; Note Guaranty.




     This is one of the Notes issued under an Indenture dated as of December 10, 2009 (as amended
from time to time, the “Indenture”), among the Company, the Guarantors party thereto and Wilmington
Trust Company, as Trustee. Capitalized terms used herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all
such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement
of all such terms. To the extent permitted



A-3









 




by applicable law, in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture will control.




     The Notes are general senior secured obligations of the Company. The Indenture provides for
the issuance of $___ aggregate principal amount of the Notes, and if and when issued, any
Additional Notes, and the originally issued Notes and all such Additional Notes will vote together
for all purposes as a single class. This Note is guarantied and secured, as set forth in the
Indenture.



3. Redemption and Repurchase; Discharge Prior to Redemption or Maturity.




     This Note is subject to optional redemption, and may be the subject of an Offer to Purchase,
as further described in the Indenture. There is no sinking fund or mandatory redemption applicable
to this Note.



     If the Company deposits with the Trustee money or U.S. Government Obligations sufficient to
pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to
redemption or maturity, the Company may in certain circumstances be discharged from the Indenture
and the Notes or may be discharged from certain of its obligations under certain provisions of the
Indenture.



4. Registered Form; Denominations; Transfer; Exchange.




     The Notes are in registered form without coupons in denominations of $1,000 principal amount
and any multiple of $10 in excess of $1,000. A Holder may register the transfer or exchange of
Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will
not be required to issue, register the transfer of or exchange any Note or certain portions of a
Note.



5. Defaults and Remedies.




     If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due
and payable. If a bankruptcy default with respect to the Company occurs and is continuing, the
Notes automatically become due and payable. Holders may not enforce the Indenture or the Notes
except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before
it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in
principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.



A-4









 





6. Amendment and Waiver.




     Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be
waived, with the consent of the Holders of a majority in principal amount of the outstanding Notes.
Without notice to or the consent of any Holder, the Company and the Trustee may amend or
supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or
inconsistency.



7. Lien Subordination and Sharing.




     These Notes and Guarantees are secured by Second-Priority Liens upon the Collateral pursuant
to certain Collateral Agreements. The Second-Priority Liens upon any and all Collateral are, to the
extent and in the manner provided in the Intercreditor Agreement, subordinate in ranking to any
future First-Priority Liens as set forth in Article 11 of the Indenture and in the Intercreditor
Agreement.



8. Authentication.




     This Note is not valid until the Trustee (or Authenticating Agent) signs the certificate of
authentication on the other side of this Note.



9. Abbreviations.




     Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A/ (= Uniform Gifts to
Minors Act).



     The Company will furnish a copy of the Indenture to any Holder upon written request and
without charge.



A-5









 





[FORM OF TRANSFER NOTICE]




     FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s)
unto



Insert Taxpayer Identification No.




	 
	 


	 

	 

	 







Please print or typewrite name and address including zip code of assignee




	 
	 

	 







the within Note and all rights thereunder, hereby irrevocably constituting and appointing




	 
	 

	 







attorney to transfer said Note on the books of the Company with full power of substitution in the
premises.




A-6









 








OPTION OF HOLDER TO ELECT PURCHASE




     If you wish to have all of this Note purchased by the Company pursuant to Section 4.12 or
Section 4.13 of the Indenture, check the 

box:  ̈



     If you wish to have a portion of this Note purchased by the Company pursuant to Section 4.12
or Section 4.13 of the Indenture, state the amount (in original principal amount) below:



$                                        .




Date:                     




Your
Signature:                                                             




(Sign exactly as your name appears on the other side of this Note)




Signature Guarantee:1                                                            






 




			
	1	 	Signatures must be guaranteed by an “eligible guarantor
institution” meeting the requirements of the Trustee, which requirements
include membership or participation in the Note Transfer Agent Medallion
Program (“STAMP”) or such other “signature guarantee program” as may be
determined by the Trustee in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.




A-7









 








SCHEDULE OF EXCHANGES OF NOTES1




     The following exchanges of a part of this Global Note for Physical Notes have been made:



	 	 	 	 	 	 	 	 	Principal amount of	 	 	 
	 	 	 	 	 	 	 	 	this Global Note	 	 	 
	 	 	Amount of decrease	 	 	Amount of increase	 	 	following such	 	 	Signature of
	 	 	in principal amount	 	 	in principal amount	 	 	decrease (or	 	 	authorized officer
	Date of Exchange	 	of this Global Note	 	 	of this Global Note	 	 	increase)	 	 	of Trustee
	 






 




			
	1 	 	For Global Notes



A-8












 





EXHIBIT B




SUPPLEMENTAL INDENTURE




dated as of                     ,            




among




CENTURY ALUMINUM COMPANY,




The Guarantor(s) Party Hereto




and




WILMINGTON TRUST COMPANY,

as Trustee




 






8% SENIOR SECURED NOTES DUE 2014




B-1









 





     THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as of                     ,
            , among Century Aluminum Company, a Delaware corporation (the “Company”), the Guarantors party
hereto, [insert each Guarantor executing this Supplemental Indenture and its jurisdiction of
incorporation] (each an “Undersigned”) and Wilmington Trust Company, as trustee (the “Trustee”).



RECITALS




     WHEREAS, the Company, the Guarantors party thereto and the Trustee entered into the Indenture,
dated as of December 10, 2009 (the “Indenture”), relating to the Company’s 8% Senior Secured Notes
due 2014 (the “Notes”);



     WHEREAS, as a condition to the Trustee entering into the Indenture and the purchase of the
Notes by the Holders, the Company agreed pursuant to the Indenture to cause any newly acquired or
created Domestic Restricted Subsidiaries (other than Foreign-Owned Parent Holding Companies) to
provide Guaranties.



AGREEMENT




     NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and
intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:



     Section 1. Capitalized terms used herein and not otherwise defined herein are used
as defined in the Indenture.



     Section 2. Each Undersigned, by its execution of this Supplemental Indenture, agrees
to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to
Guarantors, including, but not limited to, Article 10 thereof.



     Section 3. This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.



     Section 4. This Supplemental Indenture may be signed in various counterparts which
together will constitute one and the same instrument.



     Section 5. This Supplemental Indenture is an amendment supplemental to the Indenture
and the Indenture and this Supplemental Indenture will henceforth be read together.



     Section 6. The Trustee makes no representation as to the validity or adequacy of
this Supplemental Indenture or the recitals contained herein. The Trustee shall not be responsible
or liable for the validity or sufficiency of this



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Supplemental Indenture. In entering into this Supplemental Indenture, the Trustee shall be
entitled to the benefit of every provision of the Indenture relating to the conduct or affecting
the liability or affording protection to the Trustee, whether or not elsewhere herein so provided.
The Company and each Guarantor expressly reaffirms and confirms its obligation to indemnify the
Trustee in connection with the Indenture and this Supplemental Indenture and the actions
contemplated hereby.



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     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.



	 	 	 	 	 
	 	CENTURY ALUMINUM COMPANY, as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	[GUARANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WILMINGTON TRUST COMPANY, as Trustee

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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EXHIBIT C




INTERCREDITOR AGREEMENT




     This INTERCREDITOR AGREEMENT, dated as of                     , and entered into by and among CENTURY
ALUMINUM COMPANY, each other Grantor (as defined below) from time to time party hereto,                     ,
as collateral agent (as of the date hereof includes the role of collateral agent) under the Senior
Lender Documents (in such capacity(ies), together with any successor or assigns, the
“First-Lien Agent”), the Trustee (as defined below), and Wilmington Trust Company, in its
capacity as collateral agent under the Noteholder Collateral Documents (as defined below)(together
with its successors and assigns, the “Noteholder Collateral Agent”).



RECITALS




     WHEREAS, [describe new senior facility];



     WHEREAS, the Obligations (as defined below) of the Company under the Senior Facility are or
will be secured by various assets of the Company, certain of its Subsidiaries and by various assets
of certain Subsidiaries formed or acquired in the future;



     WHEREAS, the Company and certain of its Subsidiaries and the Trustee have entered into the
Indenture dated as of December 10, 2009 (as amended, supplemented or otherwise modified from time
to time, the “Indenture”), pursuant to which the Notes are governed and the obligations
under which shall be secured by various assets of the Grantors (as defined below); and



     WHEREAS, the parties hereto desire to order the priorities of their respective Liens (as
defined below) on the assets of the Grantors and address other related matters set forth below;



     NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and obligations herein
set forth and for other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:



     Article I.
(a) Definitions. As used in this Agreement, the definitions set forth
above are incorporated herein and the following terms have the meanings specified below:



     “Agreement” means this Intercreditor Agreement, as amended, renewed, extended,
supplemented or otherwise modified from time to time in accordance with the terms hereof.



     “Bankruptcy Code” means Title 11 of the United States Code, as from time to time
amended, and any successor or similar statute.



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     “Bankruptcy Law” means the Bankruptcy Code and any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law.



     “Business Day” means any day other than a Saturday, a Sunday or a day that is a legal
holiday under the laws of the State of New York or on which banking institutions in the State of
New York are required or authorized by law or other governmental action to close.



     “Common Collateral” means all of the assets of any Grantor, whether real, personal or
mixed, constituting both Senior Lender Collateral and Noteholder Collateral.



     “Company” means Century Aluminum Company, a Delaware corporation.



     “Controlled Collateral” has the meaning assigned to such term in Section 5.05.



     “DIP Financing” has the meaning set forth in Section 6.01.



     “Discharge of Senior Lender Claims” means, subject to Section 6.05, payment in full in
cash of (a) all Obligations in respect of all outstanding First-Lien Indebtedness or, with respect
to letters of credit outstanding and similar obligations, thereunder, delivery of cash collateral
(in a manner reasonably acceptable to the First-Lien Agent) in an amount equal to one hundred five
percent (105%) of the maximum amount of exposure as determined by the First-Lien Agent of all
letter of credit obligations, and any other similar obligations under the Senior Loan Documents, as
applicable, and the termination or expiration of all commitments to extend credit thereunder and
(b) all other Senior Lender Claims that are due and payable or otherwise accrued and owing at or
prior to the time such Obligations are paid, excluding, in any case, Unasserted Contingent
Obligations.



     “Existing Senior Facility” means [identify initial first-lien notes or credit
facility].



     “Financial Assets” has the meaning set forth in the Uniform Commercial Code.



     “First-Lien Agent” has the meaning set forth in the recitals.



     “First-Lien Indebtedness” means Indebtedness incurred pursuant to a Senior Facility
that is designated by the Company as First-Lien Indebtedness and which is permitted to be secured
by a first lien on the Common Collateral pursuant to Section 4.08 of the Indenture, and all
renewals, extensions refundings, restructurings, replacements and Refinancings thereof, in an
aggregate principal amount not to exceed $150,000,000, plus interest, fees, advances reasonably
necessary to preserve the value of the Common Collateral or to protect the Common Collateral, costs
and expenses including legal fees and expenses, to the extent authorized under the Senior
Collateral Documents or UCC § 9-607(d).



     “Future First-Lien Indebtedness” means any First-Lien Indebtedness, other than
Indebtedness that is incurred pursuant to the Existing Senior Facility, that is designated by the
Company as “Future First-Lien Indebtedness” under the Indenture and which is permitted to be
secured by a first lien on the Common Collateral for purposes of the Indenture or any other
Noteholder Document.



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     “Grantors” means the Company and each of its Subsidiaries that has or will have
executed and delivered a Noteholder Collateral Document or a Senior Collateral Document.



     “Hedging Obligations” means, with respect to any Person, all obligations and
liabilities of such Person in respect of (a) interest rate or currency swap agreements, interest
rate or currency cap agreements, interest rate or currency collar agreements or (b) other
agreements or arrangements designed to protect such Person against fluctuations in interest rates
and/or currency exchange rates.



     “Indebtedness” means and includes all obligations that constitute “Debt” as defined in
the Indenture.



     “Indenture” has the meaning set forth in the recitals hereto.



     “Insolvency or Liquidation Proceeding” means (a) any voluntary or involuntary case or
proceeding under any Bankruptcy Law with respect to any Grantor as a debtor, (b) any other
voluntary or involuntary insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding with respect to any
Grantor or with respect to any material part of their respective assets, (c) any liquidation,
dissolution, reorganization or winding up of any Grantor whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy or (d) any assignment for the benefit of
creditors or any other marshalling of assets and liabilities of any Grantor.



     “Investment Property” has the meaning set forth in the Uniform Commercial Code.



     “Lien” means, with respect to any asset, any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law, including any
conditional sale or other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or agreement to give any
financing statement under the Uniform Commercial Code (or equivalent statutes) of any jurisdiction
other than a precautionary financing statement not intended as a security agreement.



     “Noteholder Claims” means all Indebtedness incurred pursuant to the Indenture and all
Obligations with respect thereto.



     “Noteholder Collateral” means all of the assets of any Grantor, whether real, personal
or mixed, with respect to which a Lien is granted as security for any Noteholder Claim.



     “Noteholder Collateral Agent” has the meaning set forth in the recitals.



     “Noteholder Collateral Documents” means any agreement, document or instrument pursuant
to which a Lien is granted by any Grantor to secure any Noteholder Claims or under which rights or
remedies with respect to any such Lien are governed as the same may be amended, restated or
otherwise modified from time to time as permitted by this Agreement.



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     “Noteholder Documents” means collectively (a) the Indenture, the Notes, the Noteholder
Collateral Documents and (b) any other related document or instrument executed and delivered
pursuant to any Noteholder Document described in clause (a) above evidencing or governing any
Obligations thereunder as the same may be amended, restated or otherwise modified from time to
time.



     “Noteholder Mortgage” means any mortgage, deed of trust or similar instrument made by
any Grantor in favor of the Trustee.



     “Noteholder Pledge Agreement” means the Second Lien Pledge and Security Agreement,
dated as of December 10, 2009, among the Company, certain other Grantors and the Trustee.



     “Noteholders” means the Persons holding Noteholder Claims, including the Trustee.



     “Notes” means 8% Senior Secured Notes due 2014 issued by the Company pursuant to the
Indenture.



     “Obligations” means, with respect to any Indebtedness, any and all obligations with
respect to the payment of (a) any principal of or interest (including interest accruing on or after
the commencement of any Insolvency or Liquidation Proceeding, whether or not a claim for
post-filing interest is allowed or allowable in such proceeding) or premium on any Indebtedness,
including any reimbursement obligation in respect of any letter of credit, (b) any fees,
indemnification obligations, expense reimbursement obligations or other liabilities payable under
the documentation governing such Indebtedness, (c) any obligation to post cash collateral in
respect of letters of credit and any other obligations and/or (d) Hedging Obligations in connection
with such Indebtedness to the extent such Hedging Obligations are secured by Liens on the Common
Collateral in a manner permitted by the Indenture.



     “Person” means any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, entity or other party, including any government
and any political subdivision, agency or instrumentality thereof.



     “Pledged Collateral” means (a) the Common Collateral in the possession or control of
the First-Lien Agent (or its agents or bailees), to the extent that possession or control thereof
is necessary to perfect a Lien thereon under the Uniform Commercial Code and (b) the “Pledged
Collateral” under, and as defined in, the Noteholder Pledge Agreement that is Common Collateral.



     “Proceeds” means the following property (a) whatever is acquired upon the sale, lease,
license, exchange or other disposition of Common Collateral, whether such sale, lease, license,
exchange or other disposition is made by or on behalf of a Grantor, the First-Lien Agent, the
Noteholder Collateral Agent, the Trustee or any other Person, (b) whatever is collected on, or
distributed on account of, Common Collateral, (c) rights arising out of the loss, nonconformity, or
interference with the use of, defects or infringements of rights in, or damage to, the Common
Collateral, (d) rights arising out of the Common Collateral, or (e) to the extent of the value of
the



C-4









 




Common Collateral, and to the extent payable to the debtor or the secured party, insurance
payable by reason of the loss or nonconformity of, defects or infringement of rights in, or damage
to, the Common Collateral




     “Refinance” means, in respect of any debts, liabilities and obligations, to refinance,
replace, refund or repay, or to issue other indebtedness, in exchange or replacement for, such
debts, liabilities and obligations, in whole or in part, whether with the same or different
lenders, agents, or arrangers. “Refinanced” and “Refinancing” shall have correlative meanings.



     “Recovery” has the meaning set forth in Section 6.05.



     “Security Documents” means, collectively, the Noteholder Collateral Documents and the
Senior Lender Collateral Documents.



     “Senior Facility” means (i) the Existing Senior Facility, as may be amended, restated,
supplemented, renewed, modified, refunded, replaced, revised, restructured or Refinanced in whole
or in part from time to time, and (ii) any other agreement governing First-Lien Indebtedness,
provided that the stated principal amount in respect of all of the foregoing shall not be increased
beyond the applicable limit set forth in the Indenture (as in effect on the date hereof) for such
Indebtedness.



     “Senior Collateral Documents” means any agreement, document or instrument pursuant to
which a Lien is granted securing any Senior Lender Claims or under which rights or remedies with
respect to such Liens are governed as the same may be amended, restated or otherwise modified from
time to time.



     “Senior Lender Claims” means all First-Lien Indebtedness outstanding including any
Future First-Lien Indebtedness, and all Obligations in respect thereto. Senior Lender Claims shall
include all interest and expenses accrued or accruing (or that would, absent the commencement of an
Insolvency or Liquidation Proceeding, accrue) after the commencement of an Insolvency or
Liquidation Proceeding in accordance with and at the rate specified in the relevant Senior Lender
Document whether or not the claim for such interest or expenses is allowed as a claim in such
Insolvency or Liquidation Proceeding.



     “Senior Lender Collateral” means all of the assets of any Grantor, whether real,
personal or mixed, with respect to which a Lien is granted as security for any Senior Lender Claim.



     “Senior Lender Documents” means the Senior Facility, the Senior Collateral Documents,
and each of the other agreements, documents and instruments (including each agreement, document or
instrument providing for or evidencing a Senior Lender Hedging Obligation, providing for or
evidencing any other Obligation under the Senior Facility and any other related document or
instrument executed or delivered pursuant to any Senior Lender Document at any time or otherwise
evidencing any Indebtedness arising under any Senior Lender Document, in each case, as the same may
be amended, restated, supplemented, renewed, modified, replaced, revised, extended, restructured or
Refinanced.



C-5









 






     “Senior Lender Hedging Obligations” means any Hedging Obligations secured by any
Common Collateral under the Senior Collateral Documents as permitted by the Indenture.



     “Senior Lender Liens” means the Liens securing the Senior Lender Claims.



     “Senior Lenders” means the Persons holding Senior Lender Claims, including the
First-Lien Agent.



     “Subsidiary” means any “Subsidiary” of the Company as defined in the Indenture.



     “Trustee” means Wilmington Trust Company, in its capacity as trustee under the
Indenture, and its permitted successors and assigns.



     “Unasserted Contingent Obligations” means at any time, Obligations for taxes, costs,
indemnifications, reimbursements, damages and other liabilities (except for (i) the principal of
and interest and premium (if any) on, and fees relating to, any Indebtedness and (ii) contingent
reimbursement obligations in respect of amounts that may be drawn under letters of credit) in
respect of which no claim or demand for payment has been made (or, in the case of Obligations for
indemnification, no notice for indemnification has been issued by the indemnitee) at such time.



     “Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as from
time to time in effect in the State of New York.



     (b) Terms Generally. The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the
context requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, supplemented or otherwise modified in accordance with this Agreement,
(b) any reference herein to (i) any Person shall be construed to include such Person’s successors
and assigns and (ii) to the Company or any other Grantor shall include the Company or any other
Grantor as debtor and debtor-in-possession and any receiver or trustee for the Company or any other
Grantor (as the case may be) in any Insolvency or Liquidation Proceeding, (c) the words “herein”,
“hereof” and “hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all references herein to
Sections shall be construed to refer to Sections of this Agreement and (e) the words “asset” and
“property” shall be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities, accounts and contract
rights.



     Article II. Lien Priorities.



     Section 2.01 Subordination. Notwithstanding the date, time, manner or order of filing or
recordation of any document or instrument or grant, attachment or perfection of any Liens granted
to the Trustee or the Noteholders on the Common Collateral or of any Liens



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granted to the First-Lien Agent or the Senior Lenders on the Common Collateral and
notwithstanding any provision of the UCC, or any applicable law or the Noteholder Documents or the
Senior Lender Documents or any other circumstance whatsoever (including any non-perfection of any
Lien purporting to secure the First-Lien Indebtedness and/or the Noteholder Claims, for example,
the circumstance of non-perfection of the Lien purporting to secure the Senior Lender Claims and
perfection of the Lien purporting to secure the Noteholder Claims), the Trustee and the Noteholder
Collateral Agent, on behalf of themselves and the Noteholders, hereby agree that: (a) any Lien on
the Common Collateral securing any Senior Lender Claims now or hereafter held by or on behalf of
the First-Lien Agent or any Senior Lenders or any agent or trustee therefor regardless of how
acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall have
priority over and be senior in all respects and prior to any Lien on the Common Collateral securing
any of the Noteholder Claims and (b) any Lien on the Common Collateral securing any Noteholder
Claims now or hereafter held by or on behalf of the Trustee, the Noteholder Collateral Agent, or
any Noteholders or any agent or trustee therefor regardless of how acquired, whether by grant,
statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all
respects to all Liens on the Common Collateral securing any Senior Lender Claims. All Liens on the
Common Collateral securing any Senior Lender Claims shall be and remain senior in all respects and
prior to all Liens on the Common Collateral securing any Noteholder Claims for all purposes.




     Section 2.02 Prohibition on Contesting Liens. Each of the Trustee and the Noteholder
Collateral Agent, for itself and on behalf of each Noteholder, and the First-Lien Agent, for itself
and on behalf of each Senior Lender, agrees that it shall not (and hereby waives any right to)
contest or support any other Person in contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding), the perfection, priority, validity or enforceability of (a) a Lien
securing any Senior Lender Claims held by or on behalf of any of the Senior Lenders in the Common
Collateral or (b) a Lien securing any Noteholder Claims held by or on behalf of any of the
Noteholders in the Common Collateral, as the case may be; provided that nothing in this
Agreement shall be construed to prevent or impair the rights of the First-Lien Agent or any Senior
Lender to enforce this Agreement, including the priority of the Liens securing the Senior Lender
Claims as provided in Section 2.01 and 3.01.



     Section 2.03 No New Liens. So long as the Discharge of Senior Lender Claims has not occurred,
the parties hereto agree that, after the date hereof, if the Trustee and/or the Noteholder
Collateral Agent shall hold any Lien on any assets of the Company or any other Grantor securing any
Noteholder Claims that are not also subject to the first-priority Lien in respect of the Senior
Lender Claims under the Senior Lender Documents, the Trustee and/or the Noteholder Collateral
Agent, upon written demand by the First-Lien Agent or the Company, will assign such Lien to the
First-Lien Agent as security for the Senior Lender Claims (in which case the Trustee may retain a
junior lien on such assets subject to the terms hereof).



     Section 2.04 Perfection of Liens. Except as expressly provided in Section 5.05(a), (i) none
of the First-Lien Agent or the Senior Lenders shall be responsible for perfecting and maintaining
the perfection of Liens with respect to the Common Collateral for the benefit of the Trustee, the
Noteholder Collateral Agent and the Noteholders and (ii) none of the Trustee, the Noteholder
Collateral Agent or the Noteholders shall be responsible for perfecting and maintaining the
perfection of Liens with respect to the Common Collateral for the benefit of the




C-7












 




First-Lien Agent or the Senior Lenders. The provisions of this Intercreditor Agreement are
intended solely to govern the respective Lien priorities as between the respective Senior Lenders
and the Noteholders and shall not impose on the First-Lien Agent, the Trustee, the Noteholder
Collateral Agent, the Noteholders or the Senior Lenders any obligations in respect of the
disposition or Proceeds of any Common Collateral which would conflict with prior perfected claims
therein in favor of any other Person or any order or decree of any court or governmental authority
or any applicable law.




     Section 2.05 [reserved]



     Section 2.06 Recording of Liens. Each of the Trustee, the Noteholder Collateral Agent, and
the Noteholders agree that until the prior Lien of the Senior Lenders on any Common Collateral has
been recorded or otherwise perfected, each will take commercially reasonable efforts not to file or
to otherwise perfect a Lien against such Common Collateral (other than steps taken prior to the
date hereof). If, notwithstanding the preceding sentence, the Trustee, the Noteholder Collateral
Agent and the Noteholders have recorded or otherwise perfected a Lien prior to recording or other
perfection of the Lien of the Senior Lenders on any Common Collateral, upon written request of the
First-Lien Agent, and at the direction of the Company and upon receipt of an opinion and officer
certificate certifying that such direction is permitted under the Indenture, they and each of them
will authorize the Company to record a subordination of such Lien to the Lien of the Senior Lenders
in form and substance reasonably acceptable to the First-Lien Agent. The First-Lien Agent will use
commercially reasonable efforts to record or otherwise perfect its security interest in the Common
Collateral as promptly as practicable.



     Article III. Enforcement.



     Section 3.01 Exercise of Remedies.



     (a) So long as the Discharge of Senior Lender Claims has not occurred, even if an event of
default has occurred and remains uncured under the Noteholder Collateral Documents, and whether or
not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any
other Grantor, (i) the Trustee, the Noteholder Collateral Agent, and the Noteholders will not
exercise or seek to exercise any rights or remedies as a secured creditor (including set-off) with
respect to any Common Collateral on account of any Noteholder Claims, institute any action or
proceeding with respect to the Common Collateral, or exercise any remedies against the Common
Collateral (including any action of foreclosure), or contest, protest or object to any foreclosure
proceeding or action brought with respect to the Common Collateral by the First-Lien Agent or any
Senior Lender in respect of Senior Lender Claims, any exercise of any right under any lockbox
agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or
arrangement to which the Trustee, the Noteholder Collateral Agent, or any Noteholder is a party, or
any other exercise by any such party, of any rights and remedies as a secured creditor relating to
the Common Collateral under the Senior Lender Documents or otherwise in respect of Senior Lender
Claims, or object to the forbearance by or on behalf of the Senior Lenders from bringing or
pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies
relating to the Common Collateral in respect of Senior Lender Claims, and (ii) the First-Lien Agent
and the Senior Lenders shall have the exclusive right to enforce rights, exercise remedies
(including set-off and the right to credit



C-8 









 




bid their debt) and make determinations regarding the sale, release, disposition, or
restrictions with respect to the Common Collateral as a secured creditor without any consultation
with or the consent of the Trustee, the Noteholder Collateral Agent or any Noteholder; provided
that (A) in any Insolvency or Liquidation Proceeding commenced by or against any Grantor, the
Trustee or any Noteholder may file a statement of interest or proof of claim with respect to the
Noteholder Claims, (B) to the extent it (i) would not prevent, restrict or otherwise limit any
rights granted or created hereunder or under any Senior Lender Collateral Documents in favor of the
First-Lien Agent or any other Senior Lender in respect of the Common Collateral or (ii) is not
otherwise inconsistent with the terms of this Agreement, the Trustee or any Noteholder may take any
action not adverse to the Liens on the Common Collateral securing the Senior Lender Claims in order
to preserve, perfect or protect the validity and enforceability of its Liens in the Common
Collateral, (C) to the extent it would not prevent, restrict or otherwise limit any rights granted
or created hereunder or under any Senior Lender Collateral Documents in favor of the First-Lien
Agent or any other Senior Lender in respect of the Common Collateral, the Trustee or any Noteholder
shall be entitled to file any necessary responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleadings made by any person objecting to or otherwise
seeking the disallowance of the Noteholder Claims, including without limitation any claims secured
by the Common Collateral, if any, in each case in accordance with the terms of this Agreement, or
(D) the Trustee or any Noteholder shall be entitled to file any pleadings, objections, motions or
agreements which assert rights or interests available to unsecured creditors of the Grantors
arising under either Bankruptcy Law or applicable non-bankruptcy law, in each case in accordance
with the terms of this Agreement. In exercising rights and remedies with respect to the Common
Collateral, the First-Lien Agent and the Senior Lenders may enforce the provisions of the Senior
Lender Documents and exercise remedies thereunder, all in such order and in such manner as they may
determine in the exercise of their sole discretion. Such exercise and enforcement shall include
the rights of an agent appointed by them to sell or otherwise dispose of Common Collateral upon
foreclosure, to cause the Grantors to deliver a transfer document in lieu of foreclosure to the
Senior Lenders or any nominee of the Senior Lenders, to incur reasonable expenses in connection
with such sale or disposition, and to exercise all the rights and remedies of a mortgagee in any
applicable jurisdiction and a secured lender under the Uniform Commercial Code of any applicable
jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction. Upon
the Discharge of Senior Lender Claims, the Trustee, and the Noteholder Collateral Agent, on behalf
of themselves and the Noteholders, will not be required to release their claims on any Common
Collateral that has not been sold or otherwise disposed of in connection with the Discharge of
Senior Lender Claims.




     (b) The Trustee and the Noteholder Collateral Agent on behalf of themselves and the
Noteholders, agree that solely as to the Common Collateral, they, and each of them, will not, in
connection with the exercise of any right or remedy with respect to the Common Collateral, receive
any Common Collateral or Proceeds of any Common Collateral in respect of Noteholder Claims, or,
upon or in any Insolvency or Liquidation Proceeding (except under any plan of reorganization
approved by the Senior Lenders or as provided in Section 6.06) with respect to any Grantor as
debtor, take or receive any Common Collateral or any Proceeds of Common Collateral in respect of
Noteholder Claims, unless and until the Discharge of Senior Lender Claims has occurred. Without
limiting the generality of the foregoing, unless and until the Discharge of Senior Lender Claims
has occurred, except as expressly provided in the proviso in clause (ii) of Section 3.01(a) or
Section 6.03, the sole right of the Trustee, the Noteholder



C-9 









 




Collateral Agent and the Noteholders with respect to the Common Collateral is to hold a Lien
on the Common Collateral in respect of Noteholder Claims pursuant to the Noteholder Documents for
the period and to the extent granted therein and to receive a share of the Proceeds thereof, if
any, after the Discharge of Senior Lender Claims has occurred. In addition to the foregoing, the
Noteholders hereby acknowledge that the Noteholder Documents permit the Company and the other
Grantors to repay Senior Lender Claims with Proceeds from the disposition of the Common Collateral
prior to application to repay the Noteholders Claims, and agree that to the extent the Senior
Lender Documents require repayment of the Senior Lender Claims with Proceeds from such
dispositions, the Company shall pay such proceeds to the Senior Lenders as so required and each of
the Trustee, the Noteholder Collateral Agent and the Noteholders will not take or receive such
Proceeds until after so applied.




     (c) Subject to the proviso in clause (ii) of Section 3.01(a), the Trustee and the Noteholder
Collateral Agent, for themselves and on behalf of the Noteholders, agree that the Trustee, the
Noteholder Collateral Agent and the Noteholders will not take any action that would hinder any
exercise of remedies undertaken by the First-Lien Agent or the Senior Lenders with respect to the
Common Collateral under the Senior Lender Documents, including any sale, lease, exchange, transfer
or other disposition of the Common Collateral, whether by foreclosure or otherwise and shall
release any and all claims in respect of such Common Collateral (except for the right to receive
the balance of Proceeds and to be secured by the Common Collateral after Discharge of Senior Lender
Claims as described in Sections 4.01 and 5.01) so that it may be sold free and clear of the Liens
of the Noteholders, the Noteholder Collateral Agent and of the Trustee, on behalf of the
Noteholders, and the Trustee and the Noteholder Collateral Agent, for themselves and on behalf of
any such Noteholder, shall, within ten (10) Business Days of written request by the First-Lien
Agent, execute and deliver to the First-Lien Agent such termination statements, releases and other
documents as the First-Lien Agent may request to effectively confirm such release and the Trustee
and the Noteholder Collateral Agent, for themselves and on behalf of the Noteholders, hereby
irrevocably constitute and appoint the First-Lien Agent and any officer or agent of the First-Lien
Agent, with full power of substitution, as their true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Trustee, the Noteholder Collateral
Agent or such holder or in the First-Lien Agent’s own name, from time to time in the First-Lien
Agent’s discretion, for the purpose of carrying out the terms of this Section 3.01(c), to take any
and all appropriate action and to execute any and all documents and instruments that may be
necessary to accomplish the purposes of this Section 3.01(c), including any termination statements,
endorsements or other instruments of transfer or release. In exercising rights and remedies with
respect to the Common Collateral, the First-Lien Agent and the Senior Lenders may enforce the
provisions of the Senior Lender Documents and exercise remedies thereunder, all in such order and
in such manner as they may determine in the exercise of their sole discretion. Such exercise and
enforcement shall include the rights of an agent appointed by them to sell or otherwise dispose of
Common Collateral upon foreclosure, to cause the Grantors to deliver a transfer document in lieu of
foreclosure to the Senior Lenders or any nominee of the Senior Lenders, to incur expenses in
connection with such sale or disposition, and to exercise all the rights and remedies of a
mortgagee in any applicable jurisdiction and a secured creditor under the Uniform Commercial Code
or other laws of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any
applicable jurisdiction. The Trustee and the Noteholder Collateral Agent for themselves and on
behalf of the Noteholders, hereby waive any and all rights they or the Noteholders may have as a
junior



C-10 









 




lien creditor or otherwise to object to the manner in which the First-Lien Agent or the Senior
Lenders seek to enforce or collect the Senior Lender Claims or the Liens granted in any of the
Common Collateral in respect of Senior Lender Claims, regardless of whether any action or failure
to act by or on behalf of the First-Lien Agent or Senior Lenders is adverse to the interest of the
Noteholders. The Trustee and the Noteholder Collateral Agent, for themselves and on behalf of the
Noteholders, waive the right to commence any legal action or assert in any legal action or in any
Insolvency or Liquidation Proceeding any claim against the Senior Lenders seeking damages from the
Senior Lenders or other relief, by way of specific performance, injunction or otherwise, with
respect to any action taken or omitted by the Senior Lenders as permitted by this Agreement.




     (d) The Trustee and the Noteholder Collateral Agent hereby acknowledge and agree on behalf of
themselves and the Noteholders that no covenant, agreement or restriction contained in any
Noteholder Document shall be deemed to restrict in any way the rights and remedies of the
First-Lien Agent or the Senior Lenders with respect to the Common Collateral as set forth in this
Agreement and the Senior Lender Documents.



     Section 3.02 Cooperation. Subject to the proviso in clause (ii) of Section 3.01(a), the
Trustee and the Noteholder Collateral Agent, on behalf of themselves and the Noteholders, agree
that, unless and until the Discharge of Senior Lender Claims has occurred, they will not commence,
or join with any Person (other than the First-Lien Agent and the Senior Lenders upon the written
request thereof) in commencing any enforcement, collection, execution, levy or foreclosure action
or proceeding with respect to any Lien held by it in the Common Collateral under any of the
Noteholder Documents or otherwise in respect of the Noteholder Claims.



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     Article IV. Payments.



     Section 4.01 Application of Proceeds. So long as the Discharge of Senior Lender Claims has
not occurred, any Proceeds of any Common Collateral paid or payable to the First-Lien Agent as
provided in Section 3.01(b) or pursuant to the enforcement of any Security Document or the exercise
of any right or remedy with respect to the Common Collateral under the Senior Lender Documents,
together with all other Proceeds received by any Person (including all funds, to the extent
constituting Proceeds of Common Collateral, received in respect of post-petition interest or fees
and expenses) as a result of any such enforcement or the exercise of any such remedial provision or
as a result of any distribution of or in respect of any Common Collateral (or the Proceeds thereof
whether or not expressly characterized as such) upon or in any Insolvency or Liquidation Proceeding
(except under any plan of reorganization approved by the Senior Lenders or as provided in Section
6.06) with respect to any Grantor as debtor, shall be applied by the First-Lien Agent to the Senior
Lender Claims in such order as specified in the relevant Senior Lender Document. Upon the
Discharge of Senior Lender Claims, the First-Lien Agent shall deliver to the Trustee any Proceeds
of Common Collateral held by it in the same form as received, with any necessary endorsements but
without any representation or warranty or as a court of competent jurisdiction may otherwise
direct, to be applied by the Trustee to the Noteholder Claims in such order as specified in the
Noteholder Collateral Documents.



     Section 4.02 Payments Over. So long as the Discharge of Senior Lender Claims has not
occurred, any Common Collateral or Proceeds thereof received by the Trustee, the Noteholder
Collateral Agent or any Noteholder in connection with the exercise of any right or remedy
(including set-off) relating to the Common Collateral in contravention of this Agreement shall be
segregated and held in trust and forthwith paid over to the First-Lien Agent for the benefit of the
Senior Lenders in the same form as received, with any necessary endorsements or as a court of
competent jurisdiction may otherwise direct. If any Lien on Common Collateral for First-Lien
Indebtedness is void or voidable and the Lien on the same Common Collateral of the Trustee, the
Noteholder Collateral Agent or any Noteholder is not void or voidable, the Proceeds of such Lien
received by the Trustee, the Noteholder Collateral Agent or any Noteholder shall be segregated and
held in trust and forthwith paid over to the First-Lien Agent for the benefit of the Senior Lenders
in the same form as received, with any necessary endorsements or as a court of competent
jurisdiction may otherwise direct. Until the Discharge of Senior Lender Claims has occurred, the
Collateral Agent, for itself and on behalf of each other Noteholder, hereby appoints the First-Lien
Agent and any officer or agent of the First-Lien Agent, with full power of substitution, the
attorney-in-fact of each Noteholder for the purpose of carrying out the provisions of this Section
4.02 and taking any action and executing any instrument that the First-Lien Agent may deem
necessary or advisable to accomplish the purposes of this Section 4.02, which appointment is
irrevocable and coupled with an interest.




     Article
V. Other Agreements.



     Section 5.01
Releases.






C-12 









 






     (a) At such times as the Senior Lenders have released their Liens on all, or any portion of,
the Common Collateral in connection with a disposition thereof in order to repay Senior Lender
Claims upon enforcement of the security interests thereon, even if an event of default has occurred
and remains uncured under the Noteholder Collateral Documents, the Liens granted to the Trustee or
the Noteholders on the Common Collateral (or, in the case of a release of Liens on only a portion
of the Common Collateral, the portion of the Common Collateral on which the Senior Lender Liens
were released) shall be automatically, unconditionally and simultaneously released and the
Noteholder Collateral Agent, for itself and on behalf of the Noteholders, promptly shall execute
and deliver to the First-Lien Agent and the Company such termination statements, releases and other
documents as the First-Lien Agent and the Company may request to effectively confirm such release;
provided that the Trustee and the Noteholders will have a Lien in respect of the proceeds thereof
or in any remaining Common Collateral not disposed.



     (b) The Trustee and the Noteholder Collateral Agent, for themselves and on behalf of the
Noteholders, hereby irrevocably constitute and appoint the First-Lien Agent and any officer or
agent of the First-Lien Agent, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and stead of the Trustee
and/or the Noteholder Collateral Agent or such holder or in the First-Lien Agent’s own name, from
time to time in the First-Lien Agent’s discretion, for the purpose of carrying out the terms of
this Section 5.01, to take any and all appropriate action and to execute any and all documents and
instruments that may be necessary or desirable to accomplish the purposes of this Section 5.01,
including any termination statements, endorsements or other instruments of transfer or release,
which appointment is irrevocable and coupled with an interest.



     Section 5.02 Insurance. Unless and until the Discharge of Senior Lender Claims has occurred,
the First-Lien Agent and the Senior Lenders shall have the sole and exclusive right, subject to the
rights of the Grantors under the Senior Lender Documents, to settle and adjust claims for any
insurance policy covering the Common Collateral in the event of any loss thereunder and to approve
any award granted in any condemnation or similar proceeding or any deed in lieu of condemnation,
affecting the Common Collateral. Unless and until the Discharge of Senior Lender Claims has
occurred, all proceeds of any such policy and any such award, or any payments with respect to a
deed in lieu of condemnation, if in respect of the Common Collateral shall be paid to the
First-Lien Agent for the benefit of the Senior Lenders pursuant to the terms of the Senior Lender
Documents in respect of the Senior Lender Claims and thereafter to the Trustee for the benefit of
the Noteholders pursuant to the terms of the Noteholder Documents and then to the owner of the
subject property or as a court of competent jurisdiction may otherwise direct. Unless and until
the Discharge of the Senior Lender Claims has occurred, if the Trustee, the Noteholder Collateral
Agent or any Noteholder shall, at any time, receive any proceeds of any such insurance policy or
any such award in contravention of this Agreement, it shall pay such proceeds over to the
First-Lien Agent in accordance with the terms of Section 4.02.



     Section 5.03 Designation of Subordination.; Amendments to Noteholder Collateral Documents.



C-13 









 





     (a) The Trustee and the Noteholder Collateral Agent agree that each Noteholder Collateral
Document shall include the following language (or language to similar effect approved by the
First-Lien Agent):



     “Notwithstanding anything herein to the contrary, the lien and security interest granted to
the Noteholder Collateral Agent pursuant to this Agreement and the exercise of any right or remedy
by the Noteholder Collateral Agent hereunder are or may be subject to the provisions of the
Intercreditor Agreement, (as amended, supplemented or otherwise modified from time to time, the
“Intercreditor Agreement”), among Century Aluminum Company, and certain subsidiaries of
Century Aluminum Company party thereto, the party identified therein as First-Lien Agent, Trustee
and Noteholder Collateral Agent. In the event of any conflict between the terms of the
Intercreditor Agreement and this Agreement, the terms of the Intercreditor Agreement shall govern.”



     (b) Unless and until the Discharge of Senior Lender Claims has occurred, without the prior
written consent of the First-Lien Agent, no Noteholder Collateral Document may be amended,
supplemented or otherwise modified or entered into to the extent such amendment, supplement or
modification, or the terms of any new Noteholder Collateral Document, would be prohibited by or
inconsistent with any of the terms of this Agreement.



     (c) [reserved]



     Section 5.04 Rights As Unsecured Creditors. Notwithstanding anything to the contrary in this
Agreement, the Trustee and the Noteholders may exercise rights and remedies as unsecured creditors
against the Company any Subsidiary that has guaranteed the Noteholder Claims in accordance with the
terms of the Noteholder Documents and applicable law. Nothing in this Agreement shall prohibit the
receipt by the Trustee or any Noteholders of the required payments of interest and principal so
long as such receipt is not (i) the direct or indirect result of the exercise by the Trustee, the
Noteholder Collateral Agent or any Noteholder of rights or remedies as a secured creditor in
respect of Common Collateral or (ii) in violation of Section 3.01, 4.01, 4.02, 5.02 or 6.03. In
the event the Trustee, the Noteholder Collateral Agent or any Noteholder becomes a judgment lien
creditor in respect of Common Collateral as a result of its enforcement of its rights as an
unsecured creditor in respect of Noteholder Claims, such judgment lien shall be subordinated to the
Liens securing Senior Lender Claims on the same basis as the other Liens securing the Noteholder
Claims are so subordinated to such Liens securing Senior Lender Claims under this Agreement.
Nothing in this Agreement impairs or otherwise adversely affects any rights or remedies the
First-Lien Agent or the Senior Lenders may have with respect to the Common Collateral.



     Section 5.05 Bailee for Perfection.



     (d) (i) The First-Lien Agent agrees to hold the Pledged Collateral that is part of the Common
Collateral in its possession or control (or in the possession or control of its agents or bailees)
as bailee for the Noteholder Collateral Agent and any assignee solely for the purpose of perfecting
the security interest granted in such Pledged Collateral pursuant to the Noteholder Pledge
Agreement, subject to the terms and conditions of this Section 5.05; and (ii) the Noteholder
Collateral Agent agrees, if the First-Lien Agent shall at any time hold a first



C-14 









 




priority Lien on any Pledged Collateral that is part of the Common Collateral, to deliver as
soon as practical any such Pledged Collateral that is in its possession or control (or in the
possession or control of its agents or bailees) to the First-Lien Agent for the purpose described
in (i), subject to the terms and conditions of this Section 5.05.




     (e) The parties agree that if the First-Lien Agent shall at any time hold a first priority
Lien on any account in which Common Collateral is held, and if such account is in fact under the
control of the First-Lien Agent, or of agents of the First-Lien Agent (any such Common Collateral,
the “Controlled Collateral”), the First-Lien Agent shall, solely for the purpose of perfecting the
Liens of the Noteholders granted under the Noteholder Collateral Documents and subject to the terms
and conditions of this Section 5.05, also (i) hold and/or maintain control of the Controlled
Collateral as agent for the Noteholder Collateral Agent, (ii) with respect to any securities
accounts or securities entitlements included in the Controlled Collateral, have “control” (within
the meaning of Section 8-106(d)3 of the UCC) of such securities accounts on behalf of the
Noteholder Collateral Agent and (iii) with respect to any deposit accounts included in the
Controlled Collateral, act as agent for the Noteholder Collateral Agent for purposes of
establishing such control. Upon Discharge of Senior Lender Claims, the First-Lien Agent shall
continue to hold such Controlled Collateral pursuant to this clause (b) until the date the
Noteholder Collateral Agent has obtained control thereof for the purpose of perfecting its security
interest.



     (f) Except as otherwise specifically provided herein (including, without limitation, Sections
3.01 and 4.01), until the Discharge of Senior Lender Claims has occurred, the First-Lien Agent
shall be entitled to deal with the Pledged Collateral and the Controlled Collateral in accordance
with the terms of the Senior Lender Documents as if the Liens under the Noteholder Collateral
Documents did not exist. The rights of the Trustee, the Noteholder Collateral Agent and the
Noteholders with respect to such Pledged Collateral and the Controlled Collateral shall at all
times be subject to the terms of this Agreement.



     (g) The First-Lien Agent shall have no obligation whatsoever to the Trustee, the Noteholder
Collateral Agent or any Noteholder to assure that the Pledged or Controlled Collateral is genuine
or owned by any of the Grantors or to protect or preserve rights or benefits of any Person or any
rights pertaining to the Common Collateral except as expressly set forth in this Section 5.05. The
duties or responsibilities of the First-Lien Agent under this Section 5.05 shall be limited solely
to holding or controlling the Pledged Collateral and Controlled Collateral as bailee for the
Noteholder Collateral Agent for purposes of perfecting the Lien held by the Noteholder Collateral
Agent.



     (h) The Trustee and the Noteholders hereby waive and release the First-Lien Agent from all
claims and liabilities arising pursuant to the First-Lien Agent’s role under this Section 5.05, as
agent and bailee with respect to the Common Collateral.



     (i) Upon Discharge of Senior Lender Claims, the First-Lien Agent shall deliver to the
Noteholder Collateral Agent, without representation or warranty, to the extent that it is legally
permitted to do so, the remaining Pledged Collateral (if any) together with any necessary
endorsements (or otherwise allow the Noteholder Collateral Agent to obtain control of such Pledged
Collateral) or as a court of competent jurisdiction may otherwise direct. The First-



C-15 









 




Lien Agent has no obligation to follow instructions from the Trustee in contravention of this
Agreement. Without limiting the foregoing, upon Discharge of Senior Lender Claims, the First-Lien
Agent will use commercially reasonable efforts to promptly deliver an appropriate termination or
other notice confirming such Discharge of Senior Lender Claims to the applicable depositary bank,
issuer of uncertificated securities or securities intermediary, if any, with respect to the
Controlled Collateral.




     (j) Neither the First-Lien Agent nor the Senior Lenders shall be required to marshal any
present or future collateral security for the Company’s or its Subsidiaries’ obligations to the
First-Lien Agent or the Senior Lenders under the Senior Facility or the Senior Collateral Documents
or to resort to such collateral security or other assurances of payment in any particular order,
and all of their rights in respect of such collateral security shall be cumulative and in addition
to all other rights, however existing or arising.



     Section 5.06 Additional Collateral. If any Lien is granted by any Grantor in favor of the
Senior Lenders or the Noteholders on any additional collateral, such additional collateral shall
also be subject to a Lien in favor of the Senior Lenders and the Noteholders in the relative lien
priority scheme set forth in Section 2.01 only if and to the extent required by the Indenture.



     Section 5.07 [reserved]



     Section 5.08 [reserved]



     Section 5.09 No Fiduciary Duty. The Trustee and the Noteholder Collateral Agent agree, on
behalf of themselves and the Noteholders, that the Senior Lenders and the First-Lien Agent shall
not have by reason of the Noteholder Collateral Documents or this Agreement or any other document,
a fiduciary relationship in respect of the Trustee, the Noteholder Collateral Agent or any
Noteholder.



     Section 5.10 Increases in the Principal Amount of the Senior Lender Claims Indebtedness
Claims. The Senior Lenders may not increase the stated principal amount of the Senior Lender
Claims (exclusive of any increases to the amounts permitted in the definition of First-Lien
Indebtedness) without the consent of the Noteholders holding, at least, 50.1% in amount of the
Noteholder Claims.



     Article VI. Insolvency or Liquidation Proceedings.



     Section 6.01 Financing and Sale Issues.



          (a) If the Company or any other Grantor shall be subject to any Insolvency or Liquidation
Proceeding and the First-Lien Agent shall desire to permit the use of cash collateral or to permit
the Company or any other Grantor to obtain financing under Section 363 or Section 364 of Title 11
of the United States Code or any similar Bankruptcy Law (“DIP Financing”), then the Trustee
and the Noteholder Collateral Agent on behalf of themselves and the Noteholders agree that (i) if
the Senior Lenders consent to such use of cash collateral, the Trustee and the Noteholder
Collateral Agent, on behalf of themselves and the Noteholders, shall be deemed to have consented to
such use of cash collateral and they will not request adequate




C-16 









 







protection except to the extent permitted in Section 6.03 and (ii) if the Senior Lenders consent
to DIP Financing that provides for priming of or pari passu treatment with the Senior Lenders Liens
and the aggregate principal amount of the DIP Financing together with the aggregate principal
amount of the First-Lien Indebtedness does not exceed $175 million, the Trustee and the Noteholder
Collateral Agent on behalf of themselves and the Noteholders, will not raise any objection to and
shall be deemed to have consented to such DIP Financing, and to the extent the Liens securing the
Senior Lender Claims under the Senior Collateral Documents are subordinated or pari passu with such
DIP Financing, they will subordinate their Liens in the Common Collateral to such DIP Financing
(and all Obligations relating thereto) and the Senior Lender Claims on the same basis as the other
Liens securing the Noteholder Claims are subordinated to Liens securing Senior Lender Claims under
this Agreement.




     (b) The Trustee and the Noteholder Collateral Agent, on behalf of themselves and the
Noteholders, agree that they will not raise any objection to or oppose a sale of or other
disposition of any Common Collateral free and clear of its Liens or other claims under Section 363
of the Bankruptcy Code if the Senior Lenders have consented to such sale or disposition of such
assets so long as the interests of the Trustee, the Noteholder Collateral Agent and the Noteholders
in the Common Collateral attach to the Proceeds in the relative priority scheme set forth in
Section 2.01 and subject to the terms of this Agreement.



     Section 6.02 Relief from the Automatic Stay. Until the Discharge of Senior Lender Claims has
occurred, the Trustee and the Noteholder Collateral Agent, on behalf of themselves and the
Noteholders, agree that none of them shall seek or request relief from the automatic stay or any
other stay in any Insolvency or Liquidation Proceeding in respect of the Common Collateral, any
Proceeds thereof or any Lien of the Noteholders, in each case without the prior written consent of
the First-Lien Agent.



     Section 6.03 Adequate Protection. The Trustee and the Noteholder Collateral Agent, on behalf
of themselves and the Noteholders, agree that none of them shall contest (or support any other
Person contesting) (a) any request by the First-Lien Agent or the Senior Lenders for adequate
protection or (b) any objection by First-Lien Agent or the Senior Lenders to any motion, relief,
action or proceeding based on the First-Lien Agent’s or the Senior Lenders’ claiming a lack of
adequate protection. Notwithstanding the foregoing, in any Insolvency or Liquidation Proceeding,
(i) the Trustee on behalf of itself and the Noteholders, may seek or request adequate protection in
the form of a replacement Lien on additional collateral, provided that the Senior Lenders
are granted a Lien on such additional collateral before or at the same time the Noteholders are
granted a Lien on such collateral and that such Lien shall be subordinated to the Senior Lenders
Liens and any DIP Financing permitted under Section 6.01 (and all Obligations relating thereto) on
the same basis as the other Liens securing the Noteholder Claims are so subordinated to the Liens
securing the First-Lien Indebtedness under this Agreement and (ii) in the event that the Trustee,
on behalf of itself or any Noteholder, seeks or requests adequate protection and such adequate
protection is granted in the form of additional collateral securing the Noteholder Claims, such
Liens shall be subordinated to the Liens on such collateral securing the First-Lien Indebtedness
and any such DIP Financing (and all Obligations relating thereto) and any other Liens granted to
the Senior Lenders as adequate protection on the same basis as the other Liens securing the
Noteholder Claims are so subordinated to such Liens securing the Senior Lender Claims under this
Agreement and such



C-17 









 




additional collateral shall be included in and be part of the Common Collateral. Except as
provided in this Section 6.03, the Trustee and the Noteholder Collateral Agent, on behalf of
themselves and the Noteholders, further agree that, without the consent of the First-Lien Agent in
its sole discretion, they will not seek or accept any payments of adequate protection or any
payments under Bankruptcy Code Section 362(d)(3)(B).




     Section 6.04 No Waiver. Nothing contained herein shall prohibit or in any way limit the
First-Lien Agent or any other Senior Lender from objecting in any Insolvency or Liquidation
Proceeding or otherwise to any action taken by the Trustee or any of the Noteholders, including the
seeking by the Trustee or any Noteholder of adequate protection or the asserting by the Trustee or
any Noteholder of any of its rights and remedies under the Noteholder Documents or otherwise.



     Section 6.05 Preference Issues; Recovery. If any Senior Lender is required in any Insolvency
or Liquidation Proceeding or otherwise to turn over or otherwise pay to the estate of the Company
or any other Grantor (or any trustee, receiver or similar person therefor), because the payment of
such amount was declared to be fraudulent or preferential in any respect or for any other reason,
any amount, whether received as proceeds of security, enforcement of any right of set-off or
otherwise (a “Recovery”), then the Senior Lender Claims shall be reinstated to the extent
of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior
Lenders shall be entitled to a Discharge of Senior Lender Claims with respect to all such recovered
amounts. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall
be reinstated in full force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto.



     Section 6.06 Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor
are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan,
both on account of Senior Lender Claims and on account of Noteholder Claims, then, to the extent
the debt obligations distributed on account of the Senior Lender Claims and on account of the
Noteholder Claims are secured by Liens upon the same property, the provisions of this Agreement
will survive the distribution of such debt obligations pursuant to such plan and will apply with
like effect to the Liens securing such debt obligations.



     Section 6.07 Application. This Agreement shall be applicable and the terms hereof shall
survive and shall continue in full force and effect prior to or after the commencement of any
Insolvency or Liquidation Proceeding. The relative rights as to the Collateral and Proceeds
thereof shall continue after the filing thereof on the same basis as prior to the date of the
petition, subject to any court order approving the financing of, or use of cash collateral by, any
Grantor.



     Section 6.08 Expense Claims. None of the Noteholder Collateral Agent, the Trustee or any
Noteholder will assert or enforce, at any time prior to the Discharge of Senior Lender Claims, any
claim under §506(c) of the Bankruptcy Law senior to or on a parity with the Liens in favor of the
First-Lien Agent and the Senior Lenders for costs or expenses of preserving or disposing of any
Common Collateral.



C-18 









 





     Section 6.09 Post-Petition Claims. (a) None of the Noteholder Collateral Agent, the Trustee
or any Noteholder shall oppose or seek to challenge any claim by the First-Lien Agent or any Senior
Lender for allowance in any Insolvency or Liquidation Proceeding of Senior Lender Claims consisting
of post-petition interest, fees, including legal fees, expenses or indemnities to the extent of the
value of the Lien in favor of the First-Lien Agent and the Senior Lenders, without regard to the
existence of the Lien of the Trustee on behalf of the Noteholders on the Common Collateral.



     (b) None of the First-Lien Agent or any other Senior Lender shall oppose or seek to challenge
any claim by the Trustee or any Noteholder for allowance in any Insolvency or Liquidation
Proceeding of Noteholder Claims consisting of post-petition interest, fees, including legal fees,
expenses or indemnities to the extent of the value of the Lien of the Trustee on behalf of the
Noteholders on the Common Collateral (after taking into account the Liens in favor of the
First-Lien Agent and the Senior Lenders).



     Article VII. Reliance; Waivers; etc.



     Section 7.01 No Reliance. The Trustee, solely on behalf of the Noteholders, acknowledges, to
the best of its knowledge (without any independent investigation), that the Noteholders have,
independently and without reliance on the First-Lien Agent or any Senior Lender, and based on
documents and information deemed by them appropriate, made their own credit analysis and decision
to enter into the Indenture, this Agreement and the transactions contemplated hereby and thereby
and they will continue to make their own credit decision in taking or not taking any action under
the Indenture or this Agreement. The First-Lien Agent, solely on behalf of the Senior Lenders,
acknowledges, to the best of its knowledge, that the Senior Lenders have, independently and without
reliance on the Trustee or any Noteholder, and based on documents and information deemed by them
appropriate, made their own credit analysis and decision to enter into the Senior Facility, this
Agreement and the transactions contemplated hereby and thereby and they will continue to make their
own credit decision in taking or not taking any action under the Senior Facility or this Agreement.



     Section 7.02 No Warranties or Liability.



     (a) The Trustee, on behalf of itself and the Noteholders, acknowledges and agrees that each of
the First-Lien Agent and the Senior Lenders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Senior Lender Documents, the ownership of any Common Collateral or
the perfection or priority of any Liens thereon. The Senior Lenders will be entitled to manage and
supervise their respective loans and extensions of credit under the Senior Lender Documents in
accordance with law and as they may otherwise, in their sole discretion, deem appropriate, and the
Senior Lenders may manage their loans and extensions of credit without regard to any rights or
interests that the Trustee or any of the Noteholders have in the Common Collateral or otherwise,
except as otherwise provided in this Agreement. None of the First-Lien Agent nor any Senior Lender
shall have any duty to the Trustee, the Noteholder Collateral Agent or any of the Noteholders to
act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of
an event of default or default under any agreements with the Company or any Subsidiary thereof
(including the



C-19 









 




Noteholder Documents), regardless of any knowledge thereof that they may have or be charged
with.




     (b) The First-lien Agent, on behalf of itself and the Senior Lenders, acknowledges and agrees
that each of the Trustee and the Noteholders have made no express or implied representation or
warranty, including with respect to the execution, validity, legality, completeness, collectibility
or enforceability of any of the Noteholder Documents, the ownership of any Common Collateral or the
perfection or priority of any Liens thereon. The Noteholders will be entitled to manage and
supervise their respective loans and extensions of credit under the Noteholder Documents in
accordance with law and as they may otherwise, in their sole discretion, deem appropriate. None of
the Trustee nor any Noteholder shall have any duty to the First-Lien Agent or the Senior Lenders to
act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of
an event of default or default under any agreements with the Company or any Subsidiary thereof
(including the Senior Lender Documents), regardless of any knowledge thereof that they may have or
be charged with.



     (c) The First-Lien Agent, the Senior Lenders, the Trustee, the Noteholder Collateral Agent and
the Noteholders have not otherwise made to each other nor do they hereby make to each other any
warranties, express or implied, nor do they assume any liability to each other with respect to (a)
the enforceability, validity, value or collectibility of any of the Noteholder Claims, the Senior
Lender Claims or any guarantee or security which may have been granted to any of them in connection
therewith, (b) the Company’s, the Guarantors’ (as defined in the Indenture) or any Subsidiary’s
title to or right to transfer any of the Common Collateral or (c) any other matter except as
expressly set forth in this Intercreditor Agreement.



     Section 7.03 Obligations Unconditional. All rights, interests, agreements and obligations of
the First-Lien Agent and the Senior Lenders and the Trustee, the Noteholder Collateral Agent and
the Noteholders, respectively, hereunder shall remain in full force and effect irrespective of:



     (a) any lack of validity or enforceability of any Senior Lender Documents or any Noteholder
Documents;



     (b) any change in the time, manner or place of payment of, or in any other terms of, all or
any of the Senior Lender Claims or Noteholder Claims, or any amendment or waiver or other
modification, including any increase in the amount thereof, whether by course of conduct or
otherwise, of the terms of the Senior Facility or any other Senior Lender Document or of the terms
of the Indenture or any other Noteholder Document;



     (c) any exchange of any security interest in any Common Collateral or any other collateral, or
any amendment, waiver or other modification, whether in writing or by course of conduct or
otherwise, of all or any of the Senior Lender Claims or Noteholder Claims or any guarantee thereof;



     (d) the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or
any other Grantor; or



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     (e) any other circumstances that otherwise might constitute a defense available to, or a
discharge of, the Company or any other Grantor in respect of the Senior Lender Claims, or of the
Trustee or any Noteholder in respect of this Agreement.



     Article VIII. Miscellaneous.



     Section 8.01 Continuing Nature of this Agreement; Severability. This Agreement shall continue
to be effective until the Discharge of Senior Lender Claims shall have occurred. This is a
continuing agreement of lien subordination and the Senior Lenders may continue, at any time and
without notice to the Trustee or any Noteholder, to extend credit and other financial
accommodations and lend monies to or for the benefit of the Company or any other Grantor
constituting Senior Lender Claims in reliance hereon. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions
hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.



     Section 8.02 Amendments; Waivers. No amendment, modification or waiver of any of the
provisions of this Agreement by the Trustee or the First-Lien Agent shall be deemed to be made
unless the same shall be in writing signed on behalf of the party making the same or its authorized
agent and each waiver, if any, shall be a waiver only with respect to the specific instance
involved and shall in no way impair the rights of the parties making such waiver or the obligations
of the other parties to such party in any other respect or at any other time; provided however,
that no such amendment, modification or waiver shall affect the rights or obligations of the
Company or any Grantor without such Person’s prior written consent. Notwithstanding anything to
the contrary herein, this agreement may be amended without the consent of the Noteholders to add,
as parties hereto (subject to the same rights and obligations as the Noteholders), additional
holders of Indebtedness (or their representatives) that will be secured by the Common Collateral on
the same priority basis as the Notes or holders of Future First-Lien Indebtedness.



     Section 8.03 Information Concerning Financial Condition of the Company and the Subsidiaries.
The First-Lien Agent and the Senior Lenders, on the one hand, and the Trustee and the Noteholders,
on the other hand, shall each be responsible for keeping themselves informed of (a) the financial
condition of the Company and the Subsidiaries and all endorsers and/or guarantors of the Noteholder
Claims or the Senior Lender Claims and (b) all other circumstances bearing upon the risk of
nonpayment of the Noteholder Claims or the Senior Lender Claims. The First-Lien Agent and the
Senior Lenders shall have no duty to advise the Trustee, the Noteholder Collateral Agent or any
Noteholder of information known to it or them regarding such condition or any such circumstances or
otherwise and the Trustee, the Noteholder Collateral Agent and the Noteholders shall have no duty
to advise the First-Lien Agent or the Senior Lenders of information known to it or them regarding
such condition or any such circumstances or otherwise. In the event that the First-Lien Agent or
any of the Senior Lenders, in its or their sole discretion, undertakes at any time or from time to
time to provide any such information to the Trustee, the Noteholder Collateral Agent or any
Noteholder or the Trustee, the Noteholder Collateral Agent or any Noteholder, in its or their sole
discretion, undertakes at any time or from time to time to provide any such information to the
First-Lien Agent or any of the Senior Lenders, it or they shall be under no obligation (w) to make,
and the First-Lien Agent and



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the Senior Lenders or the Trustee, the Noteholder Collateral Agent and the Noteholders, as the
case may be, shall not make, any express or implied representation or warranty, including with
respect to the accuracy, completeness, truthfulness or validity of any such information so
provided, (x) to provide any additional information or to provide any such information on any
subsequent occasion, (y) to undertake any investigation or (z) to disclose any information that,
pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain
confidential or is otherwise required to maintain confidential.




     Section 8.04 Subrogation. The Trustee, on behalf of itself and the Noteholders, hereby agrees
not to assert or enforce any rights of subrogation it may acquire as a result of any payment
hereunder until the Discharge of Senior Lender Claims has occurred.



     Section 8.05 Application of Payments. Except as otherwise provided herein, all payments
received by the Senior Lenders may be applied, reversed and reapplied, in whole or in part, to such
part of the Senior Lender Claims as the Senior Lenders, in their sole discretion, deem appropriate,
consistent with the terms of the Senior Lender Documents. Except as otherwise provided herein, the
Trustee, on behalf of itself and the Noteholders, assents to any such extension or postponement of
the time of payment of the Senior Lender Claims or any part thereof and to any other indulgence
with respect thereto, to any substitution, exchange or release of any security that may at any time
secure any part of the Senior Lender Claims and to the addition or release of any other Person
primarily or secondarily liable therefor.



     Section 8.06 Consent to Jurisdiction; Waivers. The parties hereto consent to the jurisdiction
of any Supreme Court for New York County, New York or in the United States District Court for the
Southern District of New York and any appellate court from any thereof, and consent that all
service of process may be made by registered mail directed to such party as provided in Section
8.07 for such party. Service so made shall be deemed to be completed three days after the same
shall be posted as aforesaid. The parties hereto waive any objection to any action instituted
hereunder in any such court based on forum non conveniens, and any objection to the venue of any
action instituted hereunder in any such court. Each of the parties hereto waives any right it may
have to trial by jury in respect of any litigation based on, or arising out of, under or in
connection with this Agreement, or any course of conduct, course of dealing, verbal or written
statement or action of any party hereto in connection with the subject matter hereof.



     Section 8.07 Notices. All notices to the Noteholders and the Senior Lenders permitted or
required under this Agreement may be sent to the Trustee and the First-Lien Agent, respectively.
Unless otherwise specifically provided herein, any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, telecopied or sent by
electronic mail, courier service or U.S. mail and shall be deemed to have been given when delivered
in person or by courier service, upon receipt of a telecopy or electronic mail or four Business
Days after deposit in the U.S. mail (registered or certified, with postage prepaid and properly
addressed). For the purposes hereof, the addresses of the parties hereto shall be as set forth
below each party’s name on the signature pages hereto, or, as to each party, at such other address
as may be designated by such party in a written notice to all of the other parties.



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     Section 8.08 Further Assurances. Each of the Trustee and the Noteholder Collateral Agent, on
behalf of itself and the Noteholders, and the First-Lien Agent, on behalf of itself and the Senior
Lenders, agrees that each of them, at the expense of the Company, shall take such further action
and shall execute and deliver to the First-Lien Agent and the Senior Lenders such additional
documents and instruments (in recordable form, if requested) as the First-Lien Agent or the Senior
Lenders may reasonably request to effectuate the terms of and the lien priorities contemplated by
this Agreement.



     Section 8.09 Company Notice of the Discharge of Senior Claims. The Company shall provide
prompt written notice to the Trustee of any Discharge of the Senior Lender Claims.



     Section 8.10 Governing Law. This Agreement has been delivered and accepted at and shall be
deemed to have been made at New York, New York and shall be interpreted, and the rights and
liabilities of the parties bound hereby determined, in accordance with the laws of the State of New
York.



     Section 8.11 Binding on Successors and Assigns. This Agreement shall be binding upon the
First-Lien Agent, the Senior Lenders, the Trustee, the Noteholder Collateral Agent, the
Noteholders, the Company, and their respective permitted successors and assigns.



     Section 8.12 Specific Performance. The First-Lien Agent may demand specific performance of
this Agreement. The Trustee, on behalf of itself and the Noteholders, hereby irrevocably waives
any defense based on the adequacy of a remedy at law and any other defense that might be asserted
to bar the remedy of specific performance in any action that may be brought by the First-Lien
Agent.



     Section 8.13 Section Titles. The section titles contained in this Agreement are and shall be
without substantive meaning or content of any kind whatsoever and are not a part of this Agreement.



     Section 8.14 Counterparts; Telecopy Signatures. This Agreement may be signed in any number of
counterparts each of which shall be an original, but all of which together shall constitute one and
the same instrument; and, delivery of executed signature pages hereof by telecopy transmission, or
other electronic transmission in .pdf or similar format, from one party to another shall constitute
effective and binding execution and delivery of this Agreement by such party.



     Section 8.15 Authorization. By its signature, each Person executing this Agreement on behalf
of a party hereto represents and warrants to the other parties hereto that it is duly authorized to
execute this Agreement. The Trustee and Noteholder Collateral Agent represents and warrants to the
other parties hereto that it has been authorized by the Noteholders pursuant to Section 11.01(a) of
the Indenture to enter into this Agreement. The First-Lien Agent represents and warrants to the
other parties hereto that it has been authorized by the Senior Lenders to enter into this
Agreement,



     Section 8.16 No Third Party Beneficiaries; Successors and Assigns. This Agreement and the
rights and benefits hereof shall inure to the benefit of, and be binding upon,



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each of the parties hereto and their respective successors and assigns and shall inure to the
benefit of each of, and be binding upon, the holders of Senior Lender Claims and Noteholder Claims.
No other Person shall have or be entitled to assert rights or benefits hereunder.




     Section 8.17 Effectiveness. This Agreement shall become effective when executed and delivered
by the parties hereto. This Agreement shall be effective both before and after the commencement of
any Insolvency or Liquidation Proceeding.



     Section 8.18 Designations. For purposes of the provisions hereof requiring the Company to
designate Indebtedness for the purposes of the term “First-Lien Indebtedness,” any such designation
shall be sufficient if the relevant designation is set forth in writing, signed on behalf of the
Company by an officer thereof and delivered to the Trustee and the First-Lien Agent. For all
purposes hereof and the Indenture, the Company hereby designates the Indebtedness incurred pursuant
to the Senior Facility as First-Lien Indebtedness.



     Section 8.19 Relative Rights; Conflict. Notwithstanding anything in this Agreement to the
contrary, nothing in this Agreement is intended to or will (a) amend, waive or otherwise modify the
provisions of the Senior Facility or the Indenture or any other Senior Lender Documents or
Noteholder Documents entered into in connection with the Senior Facility or the Indenture or permit
the Company or any Subsidiary to take any action, or fail to take any action, to the extent such
action or failure would otherwise constitute a breach of, or default under, the Senior Facility or
any other Senior Lender Documents entered into in connection with the Senior Facility or the
Indenture or any other Noteholder Documents entered into in connection with the Indenture, (b)
change the relative priorities of the Senior Lender Claims or the Liens granted under the Senior
Lender Documents on the Common Collateral (or any other assets) as among the Senior Lenders, (c)
otherwise change the relative rights of the Senior Lenders in respect of the Common Collateral as
among such Senior Lenders or (d) obligate the Company or any Subsidiary to take any action, or fail
to take any action, that would otherwise constitute a breach of, or default under, the Senior
Facility or any other Senior Lender Document entered into in connection with the Senior Facility or
the Indenture or any other Noteholder Documents entered into in connection with the Indenture. As
it relates to matters between the Trustee and the Noteholders on the one hand, and the First-Lien
Agent and the Senior Lenders on the other hand, in any conflict between the provisions of this
Agreement and the Senior Lender Documents or the Noteholder Documents, this Agreement shall govern.



[SIGNATURE PAGES FOLLOW]




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     IN WITNESS WHEREOF, each of the undersigned has caused this Intercreditor Agreement to be duly
executed and delivered as of the date first above written.



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EXHIBIT D




DTC LEGEND




     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.



     TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE
INDENTURE.




D-1